HUMAN TRAFFICKING AND EXPLOITATION (SCOTLAND) BILL Trafficking Bill/b57s4-introd-en... · These...
Transcript of HUMAN TRAFFICKING AND EXPLOITATION (SCOTLAND) BILL Trafficking Bill/b57s4-introd-en... · These...
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
SP Bill 57ndashEN Session 4 (2014)
HUMAN TRAFFICKING AND EXPLOITATION
(SCOTLAND) BILL
mdashmdashmdashmdashmdashmdashmdashmdashmdashmdash
EXPLANATORY NOTES
(AND OTHER ACCOMPANYING DOCUMENTS)
CONTENTS
As required under Rule 93 of the Parliamentrsquos Standing Orders the following documents are
published to accompany the Human Trafficking and Exploitation (Scotland) Bill introduced in
the Scottish Parliament on 11 December 2014
Explanatory Notes
a Financial Memorandum
a Scottish Government statement on legislative competence and
the Presiding Officerrsquos statement on legislative competence
A Policy Memorandum is published separately as SP Bill 57ndashPM
1
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
EXPLANATORY NOTES
INTRODUCTION
1 These Explanatory Notes have been prepared by the Scottish Government in order to
assist the reader of the Bill and to help inform debate on it They do not form part of the Bill and
have not been endorsed by the Parliament
2 The Notes should be read in conjunction with the Bill They are not and are not meant to
be a comprehensive description of the Bill So where a section or schedule or a part of a
section or schedule does not seem to require any explanation or comment none is given
THE BILL
3 The Billrsquos overarching objective is to consolidate and strengthen the existing criminal law
against human trafficking and exploitation and enhance the status of and support for its victims
The Bill will also give Ministers power by regulations to specify relevant authorities to work
with the Scottish Government to develop and implement a Scottish trafficking and exploitation
strategy
4 The Bill will consolidate and clarify existing trafficking offences into one single offence
Current domestic criminal law against human trafficking in Scotland sits in a number of different
Actsmdash
Section 22 of the Criminal Justice (Scotland) Act 20031 (―2003 Act) criminalises
arranging or facilitating a personrsquos travel for the purposes of prostitution and
involvement in the making or production of indecent materials
Section 4 and 5 of the Asylum and Immigration (Treatment of Claimants etc) Act
20042 (―2004 Act) criminalises arranging or facilitating a personrsquos travel for the
purposes of other forms of exploitation
Section 46 of the Criminal Justice and Licensing (Scotland) Act 20103 (―2010 Act)
amends the provisions in the 2003 and 2004 Acts for example to create an offence
under both for someone who arranges or facilitates travel into within or out of a
country other than the UK
5 A more detailed explanation of the Billrsquos purpose can be found in the Policy
Memorandum which also explains the thinking and policy intentions that underpin it
THE STRUCTURE AND A SUMMARY OF THE BILL
6 The Bill is in six parts
1 httpwwwlegislationgovukasp20037
2 httpwwwlegislationgovukukpga200419
3 httpwwwlegislationgovukasp201013
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These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
7 Part 1 (Offences) includes provision on the creation of a single offence of human
trafficking for all types of exploitation of both adults and children establishes statutory
aggravators of human trafficking for use with other crimes and reframes the current standalone
offence of slavery servitude and forced or compulsory labour
8 Part 2 (Protection of victims) includes provision on prosecutorial guidelines for the
prosecution of victims and provision about the support and assistance to which adult victims are
entitled
9 Part 3 (Confiscation of property) includes provision on detention and forfeiture of
property and proceeds of crime
10 Part 4 (Trafficking and exploitation prevention and risk orders) includes provision on two
new preventive orders the trafficking and exploitation prevention order and the trafficking and
exploitation risk order
11 Part 5 (Strategy and reporting) includes provision on the trafficking and exploitation
strategy and the duty on specified Scottish public authorities to notify and provide information
about victims
12 Part 6 contains general and ancillary provisions
PART ONE ndash OFFENCES
Human trafficking
Section 1 Human trafficking
13 Section 1 provides for a single offence of human trafficking for the purpose of all forms
of exploitation of adults and children See paragraph 4 above for existing offence legislation
14 Subsection (1) defines the conduct which constitutes the offence of human trafficking A
person commits an offence if the person arranges or facilitates another personrsquos travel with a
view to the other person being exploited It is irrelevant whether that other person consents to
the arrangement or facilitation of travel (subsection (2)) Examples of what constitutes arranging
or facilitating another personrsquos travel for these purposes include (but are not limited to)mdash
recruiting the person with a view to transporting or transferring the person
transporting or transferring the person
transferring or exchanging control of the person
harbouring or receiving the person
15 Subsection (3) provides that the person arranges or facilitates another personrsquos travel with
a view to the other person being exploited only if the person intends to exploit the other person
or the person knows or ought to know the other person is likely to be exploited (in any part of the
world) during or after the travel
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These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
16 Subsection (5)(a) provides that on summary conviction of the offence the maximum
penalty is imprisonment for a term not exceeding 12 months a fine not exceeding the statutory
maximum or both Subsection (5)(b) provides that on conviction of the offence on indictment
the maximum penalty is imprisonment for life or a fine or both
Section 2 Application of offence to conduct in United Kingdom and elsewhere
17 Section 2 provides for the application of the human trafficking offence to conduct in the
United Kingdom and elsewhere reflecting the fact that human trafficking activity may involve
activity that is completely or partly outwith Scotland This measure implements the terms of
Article 10(2)(c) (jurisdiction) of the Directive of the European Parliament and of the Council on
preventing and combating trafficking in human beings and protecting victims replacing
Framework Decision 2002629JHA (―EU Directive)4 It should be read with the definition of
travel in section 36
18 Subsections (1) and (2) provide that a UK national a person who at the time of the
offence was habitually resident in Scotland or a body incorporated under the law of a part of the
UK commits an offence of human trafficking regardless of where the arranging or facilitating of
travel takes place or where the travel itself takes place Whether or not a person is ―habitually
resident in Scotland will be determined in the light of all the facts and circumstances of the
case
19 Subsection (3) provides that any other person commits the offence of human trafficking
only if any part of the arranging or facilitating of travel takes place in the UK or the travel
consists of arrival in or entry into departure from or travel within the UK
Section 3 Exploitation for purposes of offence of human trafficking
20 Section 3 describes what constitutes exploitation for the purposes of the offence of human
trafficking By virtue of subsection (1) only exploitation of a type mentioned in subsections (2)
to (8) is to be regarded as exploitation in this context
21 Subsection (2) provides that a person is exploited if the person is the victim of conduct
which involves the commission of an offence under section 4 of the Bill (slavery servitude and
forced or compulsory labour) or would be if the conduct occurred in Scotland
22 Subsections (3) to (5) deal with prostitution and sexual exploitation and provide that a
person is exploited ifmdash
another person exercises control direction or influence over the first personrsquos
prostitution in a way which shows that the other person is aiding abetting or
compelling the prostitution
another person involves the first person in the making or production of obscene or
indecent material or
4 httpeur-lexeuropaeuLexUriServLexUriServdouri=OJL201110100010011ENPDF
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These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
the person is the victim of conduct constituting one of a number of listed sexual
offences (or which would constitute such an offence if that conduct occurred in
Scotland)
23 The categories of exploitation related to prostitution and the making of indecent material
are drawn from the existing offence in section 22 of the 2003 Act The category related to other
forms of exploitation in connection with sexual offences is a new development in Scots law
though has some precedent under the Sexual Offences Act 2003 in England and Wales
24 Subsection (6) deals with exploitation relating to the removal of organs etc It provides
that a person is exploited in that context if they are encouraged required or expected to do
anything constituting either an offence under Part 1 of the Human Tissue (Scotland) Act 2006
which deals principally with removal of organs for transplantation or any other offence under
the law of Scotland involving removal of a part of the human body (or anything which would
constitute such an offence were it done it Scotland) This latter category ensures that the
removal of organs or tissue for purposes other than transplantation is caught by the trafficking
offences This covers the removal of body parts for research sacrificial rites consumption etc
For these purposes a part of the body comprises all parts of the body including blood
25 Subsections (7) and (8) make more general provision Subsection (7) establishes that a
person is exploited if force threats or deception are used to induce the person to provide services
or benefits or to enable another person to acquire benefits Subsection (8) provides that a person
is exploited if another person takes advantage of the personrsquos vulnerability to use or attempt to
use the person to provide services or benefits (or to enable another person to acquire benefits)
This will ensure the offence captures those cases where the role of the person being exploited is
entirely passive and where the person is being used as a tool by which others can gain a benefit
of any kind
26 The categories of exploitation in subsections (6) to (8) are derived from section 4 of the
2004 Act
Slavery servitude and forced or compulsory labour
Section 4 Slavery servitude and forced or compulsory labour
27 Section 4 provides for an offence of slavery servitude and forced or compulsory labour
Subsections (1) and (2) provide that a person is guilty of an offence if that person holds another
person in slavery or servitude or requires that other person to perform forced or compulsory
labour in circumstances which show that the first person knows or ought to know that the person
is being so held The offence must be interpreted in accordance with Article 4 of the European
Convention on Human Rights That Article prohibits a person from being held in slavery or
servitude or being required to perform forced or compulsory labour This is currently an offence
under section 47 of the 2010 Act which was created in response to the case of Siliadin v France5
(where the European Court of Human Rights held that there had been a violation of Article 4 in
relation to the holding of an individual in domestic servitude)
5 Application no 7331601 httphudocechrcoeintsitesengpagessearchaspxi=001-69891
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These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
28 Subsection (3) provides that in assessing whether a person has been the victim of the
offence the court is to have regard to any of the alleged victimrsquos characteristics that make the
person more vulnerable than other people Examples of these characteristics include age health
or family relationships
29 Subsection (4) sets out the maximum penalty available on conviction of the offence of
slavery servitude and forced or compulsory labour This is an increase from the current
maximum penalty for the offence under section 47 of the 2010 Act Subsection (4)(a) provides
that on summary conviction of the offence the maximum penalty is imprisonment for a term not
exceeding 12 months a fine not exceeding the statutory maximum or both Subsection (4)(b)
provides that on conviction of the offence on indictment the maximum penalty is imprisonment
for life a fine or both
Aggravation as to human trafficking
Section 5 General aggravation of offence
30 Section 5 makes provision for a statutory aggravation which applies in cases where an
accused commits any other offence and that offence has a connection with a human trafficking
offence Where an indictment or complaint libels or specifies that an offence is aggravated by a
connection with human trafficking activity and it is subsequently proved that the offence is
aggravated in that way the court must state on conviction that the offence is so aggravated
record the conviction in a way which shows that the offence is so aggravated take the
aggravation into account when determining the appropriate sentence and state the extent of any
difference in the sentence in light of the aggravation (or if there is no difference the reasons for
that) (subsections (1) and (5))
31 Subsection (2) sets out the circumstances in which an offence can be regarded to have
been aggravated by a connection with human trafficking This relies on proof that the accused
was motivated in whole or in part by the objective of committing or conspiring to commit the
offence of human trafficking In terms of subsection (3) it is not material to establishing the
aggravation whether or not the offence of human trafficking was actually committed by the
offender or another person
32 Subsection (4) provides clarification that corroboration is not needed to prove that an
offence is aggravated by a connection with human trafficking activity ndash evidence from a single
source is sufficient This is consistent with the existing law in relation to both corroboration and
statutory aggravations This position is under review pending further parliamentary scrutiny of
the Criminal Justice (Scotland) Bill
Section 6 Aggravation involving public official
33 Section 6 makes similar provision about a statutory aggravation which applies in cases
where a public official acting or purporting to act in the course of official duties commits the
offence of human trafficking
34 Subsection (4) sets out the steps the court must take when it is libelled in an indictment or
specified in a complaint that the offence of human trafficking is aggravated by an abuse of a
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These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
public position and proved that the offence is so aggravated These are similar to the steps which
must be taken in relation to the general aggravation in section 5
35 Subsection (5) defines those to be considered as a public official for the purposes of
section 6 while subsection (6) defines the term ―an international organisation for the purposes
of this section
36 Subsection (7) enables the Scottish Ministers to modify by regulations the definition of
who is a public official and the definition of an international organisation Any such regulations
will be subject to the affirmative procedure
PART 2 ndash PROTECTION OF VICTIMS
Prosecution of victims
Section 7 Lord Advocatersquos guidelines on prosecution of victims of offences
37 Section 7 places a duty on the Lord Advocate to prepare and publish guidelines for
prosecutors about the prosecution of suspected or confirmed victims of the offence of human
trafficking and the offence under section 4 of the Bill
38 Subsection (2) sets out that the guidelines must include factors to be taken into account or
steps to be taken when deciding whether to prosecute a person who does an act which constitutes
an offence having been compelled to do so and that the compulsion is directly attributable to the
person being or appearing to be a victim of an offence of human trafficking or as the case may
be under section 4 of the Bill
39 Subsection (3) provides that the Lord Advocate may from time to time revise the
guidelines
Support and assistance for adult victims of human trafficking
Section 8 Duty to secure support and assistance
40 Article 12 of the Council of Europe Convention on Action against Trafficking in Human
Beings6 (―COE Convention) sets out the support and assistance which must be provided for
trafficked victims The UK Government ratified the COE Convention in December 2008 and
Scotland became bound by its terms in April 2009 Currently there is no statutory basis for
potential victims of trafficking to access support and information on the type of support that they
are entitled to Support is currently provided through support agencies with grant funding from
the Scottish Ministers
41 Section 8 places a duty on the Scottish Ministers to secure the provision of support and
assistance for adult victims of human trafficking on an assessment of needs during a defined
period It also sets out a discretionary power for the Scottish Ministers to arrange the provision
of support and assistance outwith the mandatory period
6 httpconventionscoeintTreatyenTreatiesHtml197htm
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These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
42 Subsection (1) provides that where there are reasonable grounds to believe that an adult is
a victim of human trafficking the Scottish Ministers must secure the provision of such support
and assistance as is necessary given the adultrsquos needs for the relevant period
43 Subsection (2) defines the relevant period It begins on the day it is determined there are
reasonable grounds to believe that the adult is a victim of human trafficking (paragraph (a)) and
ends on the earlier of either the end of a period specified in regulations made by the Scottish
Ministers (paragraph (b)(i)) or the date on which there is a conclusive determination that the
adult is or is not a victim of a human trafficking offence (paragraph (b)(ii))
44 Subsection (3) gives the Scottish Ministers discretion to provide support and assistance
outwith the mandatory period under subsection (2) The support and assistance may be provided
to the adult during the period when a competent authority is determining whether there are
reasonable grounds to believe that the person is a victim of human trafficking (paragraph (a)) It
may also be provided before the date on which there is a conclusive determination in relation to
the adult if the mandatory period has ended by then (paragraph (b)) or after that conclusive
determination for such period as Ministers think appropriate (paragraph (c))
45 Subsection (4) provides a non-exhaustive list of the kind of support and assistance that
may be provided under section 8 The list provides that support and assistance may be provided
in connection with (but not limited to) the followingmdash
accommodation
day to day living
medical advice and treatment
language translation and interpretation
counselling
legal advice
information about other services available to the adult and
repatriation
46 Subsection (5) provides that the Scottish Ministers must ensure that in securing the
provision of support and assistance assistance is only provided where the adult consents
(subsection (5)(a)) and that the provision of assistance is not made conditional on the adult
assisting with a criminal prosecution or investigation (subsection (5)(b))
47 Subsection (6)(a) describes when there are reasonable grounds to believe that an adult is a
victim of a trafficking offence for the purposes of securing support and assistance Subsection
(6)(b) describes what is meant by a ―conclusive determination that an adult is or is not a victim
of an offence of human trafficking for these purposes
48 Subsection (7) defines what is meant by the terms ―competent authority and ―the
Trafficking Convention for the purposes of this section
9
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
PART 3 - CONFISCATION OF PROPERTY
Detention and forfeiture
Section 9 Detention of vehicle ship or aircraft
49 Section 9 sets out the power of a constable to detain a vehicle ship or aircraft if a person
has been arrested for an offence of human trafficking
50 Subsection (1) describes the circumstances where a police constable may detain a vehicle
ship or aircraft Subsection (1)(a) provides that a constable may detain a vehicle ship or aircraft
if a person has been arrested for an offence of human trafficking and the constable has
reasonable grounds to believe that a forfeiture order would be made if the person arrested were
convicted of the offence (subsection (1)(b))
51 Subsection (2) provides for the duration of the detention of the property Subsection
(2)(a) provides that the vehicle ship or aircraft may be detained until a decision is taken as to
whether or not to begin solemn proceedings against the person arrested for the offence In
circumstances where solemn proceedings have begun the property may be detained until the
person is acquitted (subsection (2)(b)(i)) the person is convicted and a decision is made whether
or not to order forfeiture of the property under section 10 (subsection (2)(b)(ii)) or the
proceedings are otherwise concluded (subsection (2)(b)(iii))
52 Subsections (3) and (4) set out the circumstances in which solemn proceedings are to be
taken to have commenced and concluded for the purposes of this section
53 Subsection (5) lists the circumstances in which a person (including the accused) with a
relevant interest in the detained property may apply to the sheriff for release of the vehicle ship
or aircraft Subsection (6) sets out the sheriffrsquos power to order release subject to satisfactory
security being tendered
54 Subsection (7) provides that the sheriff may impose such other conditions as to the
release of the detained property as the sheriff thinks fit
Section 10 Forfeiture of vehicle ship or aircraft
55 Section 10 sets out the power of the court to order forfeiture of a vehicle ship or aircraft
used or intended to be used in connection with an offence of human trafficking
56 Subsections (1) to (3) provides that forfeiture of a vehicle ship or aircraft used or
intended to be used in connection with the offence of human trafficking may be ordered if a
person convicted on indictment of that offence when the offence was committedmdash
owned the vehicle ship or aircraft
was a director secretary or manager of a company which owned it
was in possession of it under a hire purchase agreement
10
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
was a director secretary or manager of a company which was in possession of it
under a hire purchase agreement
in relation to a vehicle was driving it
in relation to a ship or aircraft was the charterer of it or was acting as captain of it
57 Subsection (4) makes special provision about cases where a ship or aircraft is to be
forfeited but the offender does not own it and was not a director secretary or manager of a
company which owns it It provides that in those circumstances forfeiture of a ship or aircraft
may only be ordered if any one of the tests listed in this subsection is satisfied Subsection (4)(a)
provides that if a person who at the time the offence was committed owned the ship or aircraft
or was a director secretary or manager of a company which owned it knew or ought to have
known of the intention to use it in the course of the commission of the offence of human
trafficking then forfeiture of a ship or aircraft may be ordered Subsection (4)(b) provides that
in the case of a ship (other than a hovercraft) if its gross tonnage is less than 500 then forfeiture
of that ship may be ordered Subsection (4)(c) provides that in the case of an aircraft if the
maximum weight at which it may take off in accordance with its certificate of airworthiness is
less than 5700 kilogrammes then forfeiture of that aircraft may be ordered under this section
Protection is provided for particular categories of owner who due to the size of the ship or
aircraft in question or the circumstances in which it is used for trafficking do not know or
reasonably suspect or are unlikely to know or reasonably suspect that the ship or aircraft is
being used in that way There is a greater likelihood that an owner of a vehicle or smaller types
of ships or aircraft will have actual or constructive knowledge that their property is being or
intended to be used for the purposes of trafficking
58 Subsection (5) provides that forfeiture cannot be ordered without giving any person
claiming an interest in the relevant property the chance to make representations
Proceeds of crime
Section 11 Proceeds of Crime Act 2002 lifestyle offences
59 Section 11 amends Schedule 4 to the Proceeds of Crime Act 2002 (―2002 Act) to
categorise all trafficking and exploitation offences as lifestyle offences for the purposes of that
Act A conviction of a lifestyle offence triggers assumptions under the 2002 Act that the accused
has a criminal lifestyle and that the accusedrsquos property is recoverable as criminal proceeds
60 Section 11(a) amends Schedule 4 to the 2002 Act by substituting paragraph 4 thereof
with a list of all offences related to trafficking and thus categorising all such offences as lifestyle
offences for the purposes of the 2002 Act Section 11(b) amends the same Schedule by inserting
a new paragraph 4A to provide that an offence under section 4 of the Bill also constitutes a
lifestyle offence
11
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
PART 4 ndash TRAFFICKING AND EXPLOITATION PREVENTION AND RISK ORDERS
Trafficking and exploitation offences
Section 12 Relevant trafficking or exploitation offences
61 Section 12 provides a list of the relevant trafficking and exploitation offences for the
purposes of trafficking and exploitation prevention and risk orders made under the Act The list
includes repealed provisions as orders (other than orders on sentencing) may still be made with
reference to convictions under such provisions
62 Subsection (2) provides that the Scottish Ministers may modify by regulations the
offences contained in the list Under section 37(2) any such regulations are subject to the
affirmative procedure
Trafficking and exploitation prevention orders
Section 13 Prevention orders on sentencing
63 Section 13 provides that a court may instead of or in addition to dealing with the person
in any other way make a trafficking and exploitation prevention order (TEPO) on sentencing of
an adult
64 Subsection (1) sets out the three circumstances where the court may make a TEPO
against a person on sentencing The first is conviction of an adult of a relevant trafficking and
exploitation offence The second circumstance is acquittal of such an offence by reason of the
special defence set out in section 51A of the Criminal Procedure (Scotland) Act 1995 (which
provides a defence where a person is unable by reason of mental disorder to appreciate the nature
or wrongfulness of their conduct) The third circumstance is a finding of unfitness for trial in
relation to such an offence under section 53F of that Act (which provides that a person is unfit
for trial if it is established on the balance of probabilities that the person is incapable by reason
of a mental or physical condition of participating effectively in that trial) In relation to the third
circumstance there must also be a finding that the adult has done the act constituting the offence
65 Subsection (3) provides that the court may make a TEPO at its own instance or on the
motion of the prosecutor
66 Subsection (4) provides the test for making a TEPO on sentencing The court must be
satisfied that there is a risk that the person in respect of whom the order is to have effect may
commit another offence mentioned in section 12 and that it is necessary to make the prohibitions
and requirements in the order for the purpose of protecting persons generally or particular
persons from the physical or psychological harm which would be likely to occur if the person
committed such an offence
67 Subsection (5) provides a definition of ―the court for the purposes of this section
12
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
Section 14 Prevention orders on application
68 Section 14 provides that the chief constable may apply to a sheriff for a TEPO against an
adult
69 Subsection (2) sets out the appropriate sheriff to whom such an application should be
made
70 Subsection (3) sets out the tests for making a TEPO on application The sheriff must be
satisfied that the person in respect of whom the order is sought is a ―relevant offender
(subsection (3)(a)) that since the person first became a relevant offender the person has acted in
a way which means that there is a risk the person will commit a relevant trafficking or
exploitation offence (subsection (3)(b)) and it is necessary to make the prohibitions or
requirements in the order for the purpose of protecting persons generally or particular persons
from the physical or psychological harm which would be likely to occur if the person committed
such an offence (subsection (3)(c))
71 Subsection (4) provides that conduct which occurred before this section came into force
may be considered when determining whether there is a risk that a person may commit a relevant
trafficking offence
Section 15 Meaning of relevant offender
72 Section 15 defines what is meant by a ―relevant offender for the purposes of section 14
73 Subsection (2) provides that a person is a relevant offender if any of the court disposals
listed in the subsection have been made in the UK in relation to that person and in respect of a
relevant trafficking or exploitation offence (as set out in section 12 of the Bill)
74 Subsections (3) to (5) deal with findings of courts and tribunals outside the United
Kingdom Subsection (3) provides that a person is a relevant offender if under the law of a
country outside the United Kingdom a listed disposal is made in respect of a person in relation
to an offence which is equivalent to an offence listed in section 12 Subsections (4) and (5) set
out tests for determining whether an offence is equivalent to a relevant offence In particular
such offences are acts which constitute offences under the law of the country concerned and
which would constitute a relevant trafficking or exploitation offence under the law of Scotland if
done in the UK by a UK national or person habitually resident in Scotland or as regards the UK
(eg by virtue of the fact that travel was arranged into out of or within the UK)
75 Subsection (6) establishes a mechanism for determining whether an act constituting an
offence in a country outside the UK would constitute an offence under the law of Scotland
76 Subsection (8) provides that for the purposes of this section convictions acquittals
findings and cautions include those which took place before this section comes into force
13
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
Section 16 Contents of prevention orders
77 Section 16 makes provision about the prohibitions or requirements (or both) that may be
contained in a TEPO Each prohibition and requirement in a TEPO is for a fixed period and the
order itself is for a fixed period The order and the prohibitions and requirements may all be for
the same period However the Bill allows some requirements and prohibitions in the order to be
set for a period shorter than that of the order if that is appropriate
78 Subsection (2) provides that both the order and any prohibition or requirement in the
order must have a specified fixed period of at least five years The only exception to that
requirement relates to a prohibition on foreign travel and an order containing only a prohibition
on foreign travel (which is dealt with in section 17) and relates to a period of not more than five
years Subsection (4) provides that a TEPO may prohibit the person in respect of whom the
order is made from doing things or require that person to do things Different prohibitions and
requirements may have effect for different periods
79 Subsection (5) provides that if the court makes a TEPO in respect of a person already
subject to such an order the earlier order will cease to have effect
80 Subsection (6) defines what is meant by ―the court for the purposes of the section
Section 17 Prohibitions on foreign travel
81 Section 17 makes provision about prohibitions on foreign travel in TEPOs
82 Subsection (1) provides that a prohibition on foreign travel contained in a TEPO and
any TEPO which contains such a prohibition and no other prohibitions or requirements must be
for a fixed period of not more than five years
83 Subsection (2) defines a prohibition on foreign travel as a prohibition on travelling to
countries outside the UK (either by reference to particular countries or generally)
84 Subsection (3)(a) determines that a prohibition on foreign travel varied or renewed by
application under section 18 or 19 may be varied or renewed for further fixed periods of no more
than five years each time Subsection (3)(b) requires that an order containing only a foreign
travel restriction may be renewed for up to that fixed period
85 Subsection (4) sets out the requirement on a person in respect of whom a TEPO
containing a prohibition on foreign travel to all countries outwith the United Kingdom has been
made to surrender at a police station each passport that the person has
86 Subsection (5) provides that any passport surrendered must be returned as soon as is
reasonably practicable after the person ceases to be subject to such a prohibition on foreign
travel Circumstances where this subsection would not apply are provided for at subsection (6)
for example where a passport has already been returned to the relevant authority
14
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
Section 18 Orders on sentencing variation renewal and discharge
87 Section 18 makes provision about varying renewing and discharging TEPOs made on
sentencing
88 Subsections (2) to (4) set out general powers in this context The person in respect of
whom the TEPO is made or the prosecutor may apply for variation renewal or discharge of such
a TEPO That application is to be made to the High Court where that court made the order and
to the sheriff otherwise Subsection (4)(b) makes provision about shrieval jurisdiction in this
connection Where the relevant court receives such an application it may vary renew or
discharge individual prohibitions or requirements or add new prohibitions or requirements it
may renew the whole order or it may discharge the whole order
89 Subsection (5) provides that the court must before making an order under this section
give an opportunity to make representations to the person in respect of whom the order is made
the prosecutor and the chief constable Subsection (6) provides that after taking into account
any such representations the court may then make such order as it thinks appropriate
90 Subsection (7) sets out the tests the court must consider when deciding whether to vary
renew or discharge TEPOs made on sentencing (including by adding new prohibitions or
requirements) or any prohibitions or requirements within them Subsection (7)(a) applies the
tests for the making of a TEPO to any variation (including an increase or a relaxation of a
requirement or prohibition) renewal or addition Subsection (7)(b) applies those tests to any
discharge of a prohibition or requirement or of an order
91 Subsection (8) makes it clear that an order varying or renewing a TEPO is subject to the
requirements and prohibitions established by sections 16 and 17 in the same way as the original
order
92 Subsection (9) defines ―prosecutor for the purposes of this section
Section 19 Orders on application variation renewal and discharge
93 Section 19 makes provision about the variation renewal or discharge of TEPOs made on
application
94 Subsections (2) to (4) set out general powers in this context The person in respect of
whom the TEPO is made or the chief constable may apply to the sheriff for variation renewal or
discharge of a TEPO made on application Subsection (4)(b) makes provision about shrieval
jurisdiction in this connection Where the sheriff receives such an application the sheriff may
vary renew or discharge individual prohibitions or requirements or add new prohibitions or
requirements renew the order so that the period of the order itself is extended or discharge the
whole order
95 Subsection (5) provides that the sheriff must before making an order under this section
give an opportunity to make representations to the person in respect of whom the order is made
15
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
and the chief constable Subsection (6) provides that after taking into account any such
representations the sheriff may then make such an order as the sheriff thinks appropriate
96 Subsection (7) sets out the tests the sheriff must consider when deciding whether to vary
renew or discharge TEPOs on application (including by adding new prohibitions or
requirements) or any prohibitions or requirements within them Those tests reflect the tests for
the making of a TEPO
97 Subsection (8) provides that when determining an application under this section the
sheriff may consider conduct which occurred before this section comes into force
98 Subsection (9) makes it clear that an order varying or renewing a TEPO is subject to the
requirements and prohibitions established by sections 16 and 17 in the same way as the original
order
Section 20 Interim prevention orders
99 Section 20 gives power to a sheriff to make an interim TEPO while the main application
under section 14 is being determined The sheriff may make such an order if the sheriff
considers it just to do so (subsection (1)) and such an order may contain prohibitions or
requirements (or both) in relation to the person in respect of whom the order is to have effect
(subsection (2)) Those prohibitions or requirements may relate to things to be done or not done
in any part of Scotland or anywhere outwith Scotland (subsection (3))
100 Subsection (4) provides that an interim TEPO will only have effect for a fixed period
specified in the order and will cease to have effect on the determination of an application for a
TEPO under section 14 if that fixed period has not expired
101 Subsection (5) allows for an application to a sheriff in the sheriffdom of the sheriff who
made the interim TEPO for variation or discharge of that order Such an application may be
made by the person in respect of whom the order was made or the chief constable
Section 21 Appeals prevention orders
102 Section 21 provides for an appeals process in relation to TEPOs and interim TEPOs
103 Subsection (1) makes provision about TEPOs made on sentencing and any variation or
renewal of such a TEPO These are to be treated as sentences for the purposes of any appeal
104 Subsections (2) (3) and (4) make provision about appeals in relation to TEPOs made on
application any variation or renewal of such a TEPO and interim TEPOs The person in respect
of whom the order was made or the chief constable may appeal against any of these orders
16
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
Trafficking and exploitation risk orders
Section 22 Risk orders
105 Section 22 provides that the chief constable may apply to a sheriff for a trafficking and
exploitation risk order (TERO) against an adult A TERO differs from a TEPO in that it may be
made where a person has not previously been convicted of a trafficking or exploitation offence
but the personrsquos behaviour indicates a risk that others may be at harm as a result of that person
committing such an offence and intervention at an early stage is necessary to prevent that harm
A TEPO can only be made where a relevant offence has already been committed
106 Subsection (2) sets out the appropriate sheriff to whom an application for such an order
may be made
107 Subsection (3) sets out the tests for making a TERO The sheriff may only make an order
if satisfied that the person in respect of whom the order is sought has acted in a way which
means that there is a risk the person may commit a relevant trafficking or exploitation offence
(subsection (3)(a)) and it is necessary to make the prohibitions or requirements in the order for
the purpose of protecting persons generally or particular persons from the physical or
psychological harm which would be likely to occur if the person committed such an offence
(subsection (3)(b))
108 Subsection (4) provides that in assessing those tests the sheriff may consider conduct
which occurred before this section comes into force
Section 23 Contents of risk orders
109 Section 23 makes provision about the prohibitions or requirements (or both) that may be
contained in a TERO Each prohibition and requirement in a TERO is for a fixed period and the
order itself is for a fixed period The orders and the prohibitions or requirements may all be for
the same period However the Bill allows some requirements and prohibitions in the order to be
set for a shorter period if that is appropriate
110 Subsection (2) provides that both the order and any prohibition or requirement in the
order must have a specified fixed period of at least two years However this does not apply to a
prohibition on foreign travel or to an order that contains a prohibition on foreign travel and no
other prohibitions or requirements Such a prohibition (or an order containing only such a
prohibition) must be for a fixed period of no more than five years under section 24(1))
111 Subsection (4) provides that a TERO may prohibit the person in respect of whom the
order is made from doing things or require that person to do things Different prohibitions and
requirements may have effect for different periods
112 Subsection (5) provides that if the sheriff makes a TERO in relation to a person already
subject to such an order the earlier order will cease to have effect
17
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
Section 24 Prohibitions on foreign travel
113 Section 24 makes provision about prohibitions on foreign travel contained in a TERO
114 As noted above subsection (1) provides that a prohibition on foreign travel contained in a
TERO and any TERO which contains such a prohibition and no other prohibitions or
requirements must be for a fixed period of not more than five years
115 Subsection (2) defines a ―prohibition on foreign travel as a prohibition on travelling to
countries outwith the UK (either by reference to particular countries or generally)
116 Subsection (3)(a) determines that a prohibition on foreign travel varied or renewed under
section 25 may be varied or renewed for further fixed periods of no more than five years each
time Subsection (3)(b) requires that an order containing only a foreign travel restriction may be
renewed for up to that fixed period
117 Subsection (4) sets out the requirement on a person in respect of whom a TERO has been
made containing a prohibition on foreign travel to all countries outwith the United Kingdom to
surrender at a police station each passport that the person has Subsection (5) provides that any
passport surrendered must be returned as soon as is reasonably practicable after the person
ceases to be subject to a prohibition on foreign travel to all countries outwith the United
Kingdom Circumstances where this subsection would not apply are provided for at subsection
(6) for example where a passport has already been returned to the relevant authority
Section 25 Variation renewal and discharge of risk orders
118 Section 25 makes provision about the variation renewal or discharge of TEROs
119 Subsections (1) to (3) set out general powers in this context The person in respect of
whom the TERO is made or the chief constable may apply to the sheriff for variation renewal or
discharge of a TERO Subsection (3) makes provision about shrieval jurisdiction in this
connection Where the sheriff receives such an application the sheriff may vary renew or
discharge individual prohibitions or requirements or add new prohibitions or requirements
renew the whole order or discharge the whole order
120 Subsection (4) provides that the sheriff must before making an order under this section
give an opportunity to make representations to the person in respect of whom the order is made
and the chief constable Subsection (5) provides that after taking into account any such
representations the sheriff may then make any order the sheriff considers appropriate
121 Subsection (6) sets out the tests the sheriff must consider when deciding whether to vary
renew or discharge TEROs (including by adding new prohibitions or requirements) or any
prohibitions or requirements within them Subsection (6)(a) applies the tests for the making of a
TERO to any variation (including an increase or a relaxation of a requirement or prohibition)
renewal or addition Subsection (6)(b) applies those tests to any discharge of a prohibition or
requirement or of an order
18
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
Section 26 Interim risk orders
122 Section 26 provides that a sheriff may make an interim TERO while the main application
under section 22 is being determined The sheriff may make such an order if the sheriff
considers it just to do so (subsection (1)) and such an order may contain prohibitions or
requirements (or both) in relation to the person in respect of whom the order is to have effect
(subsection (2)) Those prohibitions or requirements may relate to things to be done or not done
in any part of Scotland or anywhere outwith Scotland (subsection (3))
123 Subsection (4) provides that an interim TERO will only have effect for a fixed period
specified in the order and will cease to have effect on the determination of the main application
if that fixed period has not already expired
124 Subsection (5) allows for an application for variation or discharge of an interim TERO
(or a requirement or prohibition in the order) to be made to a sheriff in the sheriffdom of the
sheriff who made the interim order by the person in respect of whom the order was made or the
chief constable (subsection (6))
Section 27 Appeals risk orders
125 Section 27 provides for an appeals process in relation to TEROs and interim TEROs and
any order varying or renewing such a TERO or interim TERO The person in respect of whom
the order was made or the chief constable may appeal against any of these orders
Offences and supplementary provision
Section 28 Offences
126 Section 28 makes provision about breach of TEPOs and TEROs
127 Subsections (1) and (2) provide that a person commits an offence if that person does
anything which the person is prohibited from doing by an order or fails to do anything which the
person is required to do by a TEPO or a TERO or an interim TEPO or TERO
128 Subsection (3) makes provision about penalties in relation to these offences A person
who commits an offence under this section is liable on summary conviction to imprisonment for
a term not exceeding 12 months or a fine not exceeding the statutory minimum (or both) On
conviction on indictment that person is liable to imprisonment for a term not exceeding five
years or a fine (or both)
Section 29 Enforcement of other UK orders
129 Section 29 provides that the Scottish Ministers may modify by regulations the list of
orders at section 28(2) so that a breach of those orders in Scotland constitutes an offence under
section 28(1) The orders which may be added are ―relevant UK orders Those are described in
subsection (2) as orders under the law of England and Wales or Northern Ireland which appear to
the Scottish Ministers to be equivalent or similar to TEPOs TEROs or interim TEPOs or
TEROs
19
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
Section 30 Interpretation of Part 4
130 Section 30 defines certain terms used in Part 4
PART 5 - STRATEGY AND REPORTING
Section 31 Trafficking and exploitation strategy
131 Section 31 places a duty on the Scottish Ministers to prepare a trafficking and
exploitation strategy The strategy under this section is a strategy which sets out such actions
arrangements and outcomes as the Scottish Ministers consider appropriate in relation to the
conduct which constitutes an offence under this Act
132 Subsection (3) lists some of the matters which may be set out in the strategy though that
list is not exhaustive Those matters include for example training and awareness raising in
relation to the detection and prevention of the conduct which constitutes an offence of human
trafficking or an offence under section 4
Section 32 Review and publication of strategy
133 Subsection (1) of section 32 provides that the strategy prepared under section 31 must be
reviewed by the Scottish Ministers every three years Following a review the Scottish Ministers
are required by subsection (2) to prepare a report on the review including an assessment of the
extent to which the strategy has been complied with and may prepare a revised strategy If a
decision is taken following such a review not to prepare a revised strategy the Scottish Ministers
must set out their reasons for that decision
134 Subsection (4) places a duty on the Scottish Ministers to consult with those likely to have
an interest in the strategy before preparing or reviewing the strategy Those likely to have an
interest include but are not limited to businesses support agencies faith based groups etc
135 Subsection (5) requires the Scottish Ministers to publish and lay before the Scottish
Parliament each strategy and report prepared under this section
Section 33 Duty to co-operate on strategy
136 Section 33 provides that Scottish public authorities as specified in regulations that may
be made by the Scottish Ministers must provide such information and assistance as the Scottish
Ministers may reasonably require and otherwise co-operate with the Scottish Ministers in the
preparation or review of the strategy A specified public authority could include for example
Police Scotland and local authorities
Section 34 Duty to notify and provide information about victims
137 Section 34 places a duty on specified Scottish public authorities to notify the chief
constable of the Police Service of Scotland about a person who is or appears to be a victim of
20
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
an offence under section 1 or section 4 This duty would not affect any other general right to
report information relating to crime
138 Subsection (2) requires that a notification relating to an adult is anonymised and does not
include any information that identifies the adult or enables the adult to be identified unless the
adult consents to that data being provided
139 Subsection (3) provides that the Scottish Ministers may by regulations specify the
Scottish public authorities who are to be subject to this duty and may make provision about the
information to be included in the notification The regulations will be subject to the negative
procedure
PART 6 ndash FINAL PROVISIONS
Section 35 Offences by bodies corporate etc
140 Section 35 provides that where an offence under the Bill was committed by a body
corporate or a Scottish partnership or other unincorporated association and it is proved that the
offence was committed with the consent or connivance of or was attributable to any neglect on
the part of a relevant individual or someone purporting to be acting in the capacity of a relevant
individual that individual as well as the body corporate partnership or unincorporated
association commits the offence and is liable to be proceeded against and punished accordingly
141 Subsection (2) defines what is meant by a ―relevant individual for the purpose of this
section
Section 36 Interpretation
142 Section 36 defines certain terms for the purposes of the Bill for example the definition
of ―travel
Section 37 Regulations
143 The Scottish Ministers are given various powers under this Bill to make regulations
Section 37 provides for the parliamentary procedure which is to be applicable in relation to each
of those powers
Section 38 Ancillary provision
144 Section 38 provides that the Scottish Ministers may make regulations containing such
incidental supplementary consequential transitional transitory or saving provision as they
consider necessary or expedient for the purposes of or in connection with the provisions of the
Bill
21
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
Section 39 Minor and consequential amendments
145 Section 39 introduces the schedule which makes minor amendments and amendments
consequential on the provisions of the Bill Given their replacement in Part 1 of the Bill the
schedule repeals the current offences in relation to human trafficking (section 22 of the 2003 Act
and section 4 of the 2004 Act) and slavery servitude and forced or compulsory labour (section
47 of the 2010 Act)
Section 40 Crown application
146 Section 40(1) provides that none of the provisions made by or under the Act are capable
of making the Crown criminally liable In accordance with subsection (2) enforcement of
offences against the Crown is to be done by the Scottish Ministers or any other public body or
office-holder with responsibility for enforcing the provision applying to the Court of Session for
a civil declarator of non-compliance This provision does not apply to persons in the public
service of the Crown
Section 41 Commencement
147 Section 41 provides that sections 36 37 38 40 41 and 42 of the Bill come into force on
the day after Royal Assent All other provisions are to come into force on a day appointed by
regulations made by the Scottish Ministers
22
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
FINANCIAL MEMORANDUM
INTRODUCTION
1 This document relates to the Human Trafficking and Exploitation (Scotland) Bill (―the
Bill) introduced in the Scottish Parliament on 11 December 2014 It has been prepared by the
Scottish Government to satisfy Rule 932 of the Parliamentrsquos Standing Orders It does not form
part of the Bill and has not been endorsed by the Parliament
2 The purpose of the Bill is to consolidate and strengthen the existing criminal law against
human trafficking and exploitation and enhance the status and support provided to victims Bill
provisions are in the following Partsmdash
Part 1 (Offences) includes provision on the creation of a single offence of human trafficking
for all types of exploitation of both adults and children establishes statutory aggravators of
human trafficking for use with other crimes and reframes the current standalone offence of
slavery servitude and forced or compulsory labour
Part 2 (Protection of victims) includes provision on prosecutorial guidelines for the
prosecution of victims and provision about the support and assistance to which adult victims
are entitled
Part 3 (Confiscation of property) includes provision on detention and forfeiture of property
and proceeds of crime
Part 4 (Trafficking and exploitation prevention and risk orders) includes provision on
two new preventive orders the trafficking and exploitation prevention order and the
trafficking and exploitation risk order
Part 5 (Strategy and reporting) includes provision on the trafficking and exploitation
strategy and the duty on specified Scottish public authorities to notify and provide
information about victims
Part 6 contains general and ancillary provisions
3 This Financial Memorandum considers the financial implications of each of the elements
of the Bill where relevant
BACKGROUND
4 Before considering the financial implications associated with the specific provisions
within the Bill it is important to consider both the current estimated extent of human trafficking
in Scotland and existing activity by public bodies and others in response to this issue
23
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
Extent of human trafficking in Scotland
5 Human trafficking is by its nature a hidden crime The National Referral Mechanism
(NRM) is the process set up by the UK Government to identify and support victims of trafficking
in the UK The NRM is also the mechanism by which the UK Human Trafficking Centre
collects data about potential victims of trafficking Information about suspected child and adult
victims of human trafficking is referred by relevant ―first responder organisations such as the
police and third sector bodies for example Migrant Help and the Trafficking Awareness Raising
Alliance (TARA) Referrals relate to victims trafficked from outside and within the UK The
table below summarises the most recent available information on NRM referrals from first
responder organisations in Scotland
Table 1 Recent referrals from first responders in Scotland of potential child and adult
human trafficking victims to the National Referral Mechanism
2012 2013
Adults 67 77
Children 29 22
Total 96 99
of all UK Referrals 8 6
Source National Crime Agency National Referral Mechanism Statistics 2012 and 20131
6 Various reports confirm that the number of victims referred through the NRM is likely to
be a significant underestimate of the actual number of potential victims of trafficking For
example the Equality and Human Rights Commission Inquiry into Human Trafficking in
Scotland (2011) noted ―estimates of identified potential victims do not reflect what is likely to be
a much greater number of unidentified victims2
7 The UK National Crime Agency (NCA) Strategic Assessment of the Nature and Scale of
Human Trafficking in the UK3 aims to provide an indication of the nature and scale of human
trafficking beyond the number of referrals to the NRM The assessment is produced using
intelligence held by the NCA the NRM and intelligence information collected from agencies
such as Police Scotland the Home Office Gangmastersrsquo Licensing Authority and non-
government organisations The assessment removes information of potential victims referred to
the NRM who have received a negative ―reasonable grounds or ―conclusive decision (ie it
has been confirmed that they are not victims of trafficking) or duplicate information about
individuals (ie the same person has been referred more than once or by more than one agency)
to show a total number of ―unique potential victims of trafficking The NCA Assessment for
2013 indicated that there were significantly more unique potential victims of human trafficking
identified across the UK than the numbers referred to the NRM even excluding those that
received a negative decision and that the number of unique victims was increasing
1 httpwwwnationalcrimeagencygovukpublications399-nca-strategic-assessment-the-nature-and-scale-of-
human-trafficking-in-2013file 2httpwwwequalityhumanrightscomsitesdefaultfilesdocumentsScotlandHuman_Trafficking_in_Scotland_inq
uiry_into_human_trafficking_in_scotland-full-report_pdf_pdf 3 httpwwwnationalcrimeagencygovukpublications399-nca-strategic-assessment-the-nature-and-scale-of-
human-trafficking-in-2013file
24
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
Table 2 Comparison of recent UK referrals to the National Referral Mechanism and the
National Crime Agency Strategic Assessment of the Scale of Human Trafficking
2012 2013 Change
Referred to NRM 778 1095 +41
NCA Assessment No of
Unique Potential Victims
Identified
2255 2744 +22
Source National Crime Agency Strategic Assessment of the Nature and Scale of Human
Trafficking in the UK4
8 For Scotland the NCA Assessment for 2013 identified 55 unique potential victims of
human trafficking compared with 99 referrals to the NRM It is not known why in contrast to
the position in England and Wales the NCA Assessment for Scotland is lower than the NRM
referrals although it will exclude potential victims who received a negative conclusive decision
and duplicate referrals However these numbers must be treated with significant caution There
remains strong conviction amongst law enforcement bodies and victims organisations that there
are more victims of trafficking than are identified and that even once identified victims are
often unwilling to engage with authorities or identify themselves as having been trafficked For
the purpose of this Financial Memorandum the Scottish Government has accepted the NCA
assessment that there are likely to be between two and three times as many potential victims of
trafficking as are currently identified through the NRM This assessment is based on the Scottish
Governmentrsquos best understanding of the hidden nature of this crime and the known reluctance of
some victims to identify their trafficked status or to engage with public authorities
Criminal justice response to human trafficking and exploitation
9 There have been relatively few prosecutions and convictions for human trafficking
offences under existing criminal justice legislationmdash
The Criminal Justice (Scotland) Act 20035 (―the 2003 Act) provides for offences of
trafficking for the purposes of exploitation by way of prostitution
The Asylum and Immigration (Treatment of Claimants etc) Act 20046 (―the 2004
Act) provides for offences of trafficking for labour and other forms of exploitation
The Criminal Justice and Licensing (Scotland) Act 20107 (―the 2010 Act) amended
and extended the 2003 and 2004 Acts and created a standalone offence of holding
someone in slavery or servitude or requiring a person to perform forced or
compulsory labour
10 The first successful convictions for human trafficking in Scotland were in 2011 under
section 22 of the 2003 Act for trafficking for the purposes of prostitution During 2013 a total of
four people were convicted of human trafficking offences - one person under section 22 of the
2003 Act and three people under section 4 of the 2004 Act for trafficking for forced marriage
4 httpwwwnationalcrimeagencygovukpublications399-nca-strategic-assessment-the-nature-and-scale-of-
human-trafficking-in-2013file 5 httpwwwlegislationgovukasp20037
6 httpwwwlegislationgovukukpga200419
7 httpwwwlegislationgovukasp201013
25
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
The average custodial sentence length for those convicted of trafficking offences was 847 days
(just under two years and four months) as well as any confiscation order imposed
11 Although the number of convictions for trafficking offences has been small police and
the Crown Office and Procurator Fiscal Service (COPFS) have confirmed that even though it is
not possible to always prove the trafficking offence where a credible suspicion exists people
suspected of involvement with trafficking can and often are prosecuted and convicted for other
crimes such as crimes associated with prostitution forced marriage immigration offences and
drugs offences etc
12 Police Scotland has established a dedicated National Human Trafficking Unit to enhance
the police response to human trafficking through awareness raising intelligence gathering
training and providing divisions with advice and specialist knowledge The COPFS has
appointed dedicated expert fiscals to prosecute human trafficking offences
Support for victims of trafficking
13 The Scottish Government currently allocates direct grant funding to non-government
organisations to provide and facilitate immediate support and assistance to the adult victims of
human trafficking This support can include immediate safe accommodation psychological
support assistance in accessing medical treatment material assistance interpretation and
translation and assistance either with repatriation or securing longer-term access to mainstream
services and support such as welfare benefits and housing The provision of support and
assistance is not conditional on the potential victim being willing to participate in the criminal
justice process Under the NRM victims of trafficking are guaranteed ―a recovery and reflection
period to recover from their experience escape the influence of those alleged to have trafficked
or exploited them and consider whether to engage with authorities The Council of Europe
Convention on Action Against Trafficking in Human Beings8 provides for a reflection period of
at least 30 days for all trafficked victims when there are reasonable grounds to believe that the
person concerned is a victim The current minimum recovery and reflection period in Scotland
and the rest of the UK is 45 days
14 In 2013-14 total grant funding of pound723000 was provided by the Scottish Government
towards the costs of ensuring immediate support and assistance for the adult victims and
potential victims of trafficking in Scotland This funding was provided through two non-
government organisationsmdash
the TARA Service which works with women aged 18 years and over across
Scotland where there are concerns that they have been trafficked for commercial
sexual exploitation and
Migrant Help a UK-wide organisation providing support and advice services to
migrants including new asylum claimants refugees EU nationals etc
15 Support for the child victims of trafficking is co-ordinated by local authorities as part of
their child protection arrangements and in line with the policy intention that children remain
8 httpwwwcoeinttdghlmonitoringtraffickingdocsconvntnCETS197_enasp
26
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
children first and that their needs should be treated accordingly The Scottish Government has
produced a toolkit for agencies working with children and young people to ensure that staff are
able to identify trafficked children and make appropriate referrals so that victims can receive
protection and support The toolkit is designed to be used in conjunction with National Child
Protection Guidance9 which was first published in 2010 and refreshed in 2014 and other
relevant national and international guidance Information about current expenditure on child
victims of trafficking is not recorded separately from information about wider expenditure on
child protection services
Lord Advocate guidance on prosecution policy
16 In his letter of 21 January 2013 to the Scottish Parliament European and External
Relations Committee10
the Lord Advocate set out the current arrangements for fiscals
considering the prosecution of a confirmed or potential victim of human trafficking where it is
believed or claimed that the crime was committed as a direct consequence of the personrsquos
trafficked status The letter set out the basis for the current Lord Advocatersquos guidance to
prosecutors including the presumption against the prosecution of a credible trafficking victim
for crimes that arise as a consequence of the victimrsquos trafficked status
Human trafficking strategic approach awareness raising and training
17 The first Scottish Human Trafficking Summit was hosted by the Cabinet Secretary for
Justice in October 2012 The summit brought together key law enforcement public private and
third sector organisations with an interest in human trafficking Following the summit a number
of strategic collaborative actions were agreed and progressed including with reference to
awareness raising and training for frontline staff data collection and analysis identification care
and support for both child and adult victims of trafficking and enhancing enforcement
18 One specific workstream related to awareness raising and training of front-line staff
likely to come into contact with trafficking victims or potential instances of trafficking
Following the summit Police Scotland with support from the Scottish Government and others
prepared published and circulated widely an awareness raising leaflet ndash Reading the Signs11
ndash to
assist police officers and staff in other front line posts in identifying the signs of potential
trafficking The Scottish Government also participated with the UK Government in a UK-wide
public awareness raising campaign about modern slavery and trafficking
19 In addition to general awareness raising specific training material was prepared for key
front-line staff For example all police officers were required to undertake an e-learning course
on human trafficking A special leaflet for health workers was prepared and circulated by NHS
Health Scotland An e-learning module for health workers about their role in identifying and
9 httpwwwscotlandgovukPublications2014053052
10httpwwwscottishparliamentukS3_EuropeanandExternalRelationsCommitteeGeneral20DocumentsLetterfro
mTheLordAdvocatepdf 11
httpwwwscotlandpoliceukassetspdf174967human-traffickingview=Standard
27
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
responding to victims of trafficking was made available through the National Gender Based
Violence and Health Programme12
IMPACT OF SPECIFIC PROVISIONS
PART 1 - OFFENCES
Single trafficking offence
20 The Bill establishes a new single offence of human trafficking for all types of
exploitation for both adults and children replacing existing separate criminal offences (see
paragraph 9 above) As noted above to date there have been relatively small numbers of
prosecutions under existing trafficking offences
21 The maximum penalty for conviction on indictment for the single trafficking offence will
be life imprisonment compared with a maximum of 14 years for the current separate offences
Although it will be for the court to decide how to sentence people convicted under the new single
offence in any given case it is likely that the availability of a higher maximum sentence will
have cost implications for the Scottish Prison Service (SPS)
Revised slavery servitude and forced labour offence
22 The Bill will also repeal and replace the existing exploitation offence within section 47 of
the 2010 Act which criminalises holding someone in slavery or servitude or requiring them to
perform compulsory or forced labour The offence will be revised and strengthened to allow the
court to consider in assessing whether a person has been a victim of an offence the victimrsquos
characteristics such as age physical or mental illness disability or where relevant family
relationships The maximum penalty for the offence will be increased from 14 years for the
current offence to life imprisonment for a conviction on indictment
Statutory aggravators
23 The Bill makes provision for statutory aggravators which apply in cases where an
accused person commits an offence connected with human trafficking and for when the offence
is committed in connection with the accusedrsquos position as a public official The court must take
the aggravation into account in determining the appropriate sentence if it is proved that the
offence is aggravated in this way The statutory aggravator is not anticipated to have any
substantial financial implications for public private or third sector bodies or for individuals
Costs on the Scottish Administration
24 Consolidating and clarifying the existing criminal law on trafficking and exploitation
alongside other measures arising from the Bill and the trafficking and exploitation strategy
including training and awareness raising and support for victims should increase the potential
for successful investigations prosecutions and convictions of human trafficking and exploitation
offences There have been six successful prosecutions for a specific trafficking offence to date in
Scotland with an average custodial sentence length of two years and four months against a
12
httpwwwgbvscotnhsuk
28
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
maximum possible sentence of 14 years The maximum number of prosecutions in any one year
was four individuals in two separate cases
25 Police and prosecutors already have in place specialist resources for investigating and
prosecuting human trafficking and exploitation offences and these provisions will not add to
these costs Law enforcement agencies have confirmed that whilst the number of prosecutions
for specific trafficking offences has been low where victims are identified but are unwilling to
testify individuals suspected of trafficking and exploitation will be prosecuted in court for other
related offences The Lord Advocate has identified that ―If we donrsquot have the evidence [to
prosecute for a specific human trafficking offence] we prosecute for fraud ID theft or asylum
and immigration offences13
26 The Scottish Government does not anticipate therefore significant additional cost
implications for law enforcement agencies or courts as cases will often proceed with a
trafficking offence alongside or in place of other related offences For the same reason the
Scottish Government does not anticipate significant additional cost on the Scottish Legal Aid
Board (SLAB) However if it is assumed that the number of successful trials proceeding in any
single year doubles from two to four there would be some additional costs on the COPFS the
Scottish Court Service (SCS) and SLAB based on the average unit costs for cases proceeded
either through Sheriff Court Solemn procedure or through the High Court These estimated costs
depending on whether cases are proceeded through the High Court or Sheriff Court solemn
procedure are illustrated in the table below
Table 3 Estimated unit costs of additional trial procedures through either High Court or
Sheriff Court solemn procedure (pound000)
Average prosecution
costs per procedure
(COPFS)
Average court costs
per procedure (SCS)
Average legal aid
costs per procedure
(SLAB)
Sheriff Court solemn
procedure (pound000) pound49 pound19 pound16
High Court (pound000) pound556 pound90 pound135
Estimated average
costs of 2 additional
trial procedures 4
accused per annum
(pound000)
pound99-pound1112 pound38-pound180 pound64-pound540
Source costs of the Criminal Justice System in Scotland Dataset (2013)14
27 There will also be costs to the SPS both through any increase in the number of successful
convictions for trafficking and exploitation offences and an anticipated increase in the average
length of custodial sentence for these crimes It is not possible to know for certain the total
13
httpwwwdailyrecordcouknewsscottish-newsonly-three-successful-prosecutions-brought-4457684 14httpwwwscotlandgovukTopicsStatisticsBrowseCrimeJusticePublicationscostcrimjustsc
otcostcrimjustdatasethttpwwwscotlandgovukTopicsStatisticsBrowseCrimeJusticePublicationscostcrimj
ustscotcostcrimjustdataset
29
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
number of future convictions or what sentencing decisions might be taken by courts in individual
cases
28 The table below illustrates the potential cost implications of either maintaining or
increasing the current maximum number of convictions in any individual year from four to eight
convictions For the purpose of the calculation it is assumed that the average custodial sentence
length for trafficking and exploitation offences will increase from two years and four months
(classified as a short-term sentence) to over four years (classified as a long-term sentence) as
increasing the maximum sentence to life imprisonment is anticipated to increase the average
sentence for a trafficking offence The estimated average annual cost of a prison place based on
SPS figures is pound42500 Taking account of the current early release arrangements for long-term
prisoners and the overlapping of individual sentences would result in an estimated increase of 8
to 21 total prison places each year after four years ndash ie with an additional four people receiving
custodial sentences each year and released by the Parole Board at the halfway point of their
sentence or automatically at the two-thirds point The total costs to the SPS will be within a
range of pound340000 to pound890000 These costs will fit within the overall budget costs to the SPS
As at 17 October 2014 there were 7731 people in custody in Scotland An additional 21 places
accounts for 03 of the total prison population
Table 4 Estimated range of costs to the Scottish Prison Service from increasing the
number and average length of successful prosecutions for trafficking offences
Year 1 Year 2 Year 3 Year 4
Additional Prison places 0-4 4-12 8-17 8-21
Additional Cost (pound000) pound0-pound170 pound170- pound510 pound340-pound720 pound340-pound890
Table 5 Estimated range of combined costs for trial procedures and prison places
Year 1 Year 2 Year 3 Year 4
Additional Cost (pound000) pound20-pound353 pound190- pound693 pound360-pound900 pound360-pound1073
Costs on other bodies individuals and businesses
29 There will be no new costs falling on other bodies individuals and businesses as a
consequence of these sections but see the section below with reference to victim support
Costs on local authorities
30 There will be no new costs falling on local authorities as a consequence of these specific
sections
PART 2 - PROTECTION OF VICTIMS
Duty on the Lord Advocate to publish guidance about the prosecution of credible trafficking and
exploitation victims who have committed offences
Costs on the Scottish Administration
31 As noted above the Lord Advocate already prepares and publishes guidance to fiscals
about the prosecution of credible victims of human trafficking for crimes committed as a direct
30
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
consequence of their trafficking status The requirement to publish such guidance would in
future be statutory However there will be no new costs on the Scottish Government or the
COPFS as a consequence of placing the requirement for the Lord Advocate to issue this
guidance on a statutory basis
Costs on other bodies individuals and businesses
32 There will be no new costs falling on other bodies individuals and businesses as a
consequence of these sections
Costs on local authorities
33 There will be no new costs falling on local authorities as a consequence of these sections
Ensure the rights of victims to access and support
34 The Bill will place a statutory duty on the Scottish Ministers to secure the provision of
relevant immediate support and recovery services for adult victims of trafficking subject to an
assessment of need The Bill will specify those victims or potential victims entitled to support
and the minimum time periods during which such services should be provided Specifically the
Bill will require Ministers to provide support and assistance based on each individualrsquos assessed
needs during the recovery and reflection period (currently 45 days) during which the
individualrsquos trafficking status is determined The Bill specifies minimum support and assistance
that should be considered as part of the assessment including access to housing treatment
interpretation services etc The Scottish Ministers have the flexibility to provide support and
assistance outwith the specified reflection and recovery period where this is considered
appropriate
35 As noted above the Scottish Ministers already provide grant funding totalling pound723000
to third sector organisations to assist identified adult potential victims of trafficking Provision of
support to adult victims will be placed on a statutory basis The number of adult potential victims
of trafficking referred through the NRM during 2013 was 77 although not all of these will have
requested assistance or received the full range of support services It is assumed that other
actions arising from the Bill including the single offence and publication of the trafficking and
exploitation strategy will result over time in an increase in identified victims and requests for
assistance and support
Costs on the Scottish Administration
36 The Scottish Government anticipates that improved awareness raising and training of
front-line staff will result in an increase in the number of victims identified over time It is not
possible to know how quickly this improvement will be achieved However between 2012 and
2013 the number of potential identified victims across the UK identified through the NCA
strategic assessment and NRM increased by 22 and 41 respectively Given the need for
awareness raising and training to impact the Scottish Government does not anticipate a similar
scale of increase in the immediate term but the Government considers it reasonable to anticipate
a possible increase of between 10 and 20 per annum in the overall number of requests for
assistance and support each year over the next four years Assuming a similar mix of needs as
31
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
current victims the increased costs to the Scottish Government on top of existing funding
would range between pound290000 to pound580000 per annum by year four
Table 6 Estimated range of costs increases for victim support and assistance (pound000)
Year 1 Year 2 Year 3 Year 4
Additional Cost (pound000) pound0-pound140 pound140-pound280 pound220-pound430 pound290-pound580
Costs on other bodies individuals and businesses
37 There will be no additional costs on other public bodies individuals or businesses
associated with these specific provisions There will be no direct additional costs falling on third
sector organisations as a consequence of the specific provisions It is likely however that all or
part of the additional funding identified above will be directed by the Scottish Government
through relevant third sector organisations with the expertise to provide immediate support and
protection to victims
Costs on local authorities
38 The Bill creates no new legislative requirements for the delivery of childrenrsquos services
recognising that this already exists It is therefore not anticipated that the Bill will result in any
quantifiable additional costs on local authorities or other public bodies as a result of support for
child victims Child victims of trafficking are supported as part of the Getting It Right for Every
Child (GIRFEC) approach any child whether identified as trafficked or not will be assessed on
the basis of its needs It is anticipated that as a consequence of the strategy (for which the Bill
provides) that more children may be identified as trafficked It is noted however that various
reports including most recently the UK Governmentrsquos NRM Review Report15
have found that
children who are already receiving support from relevant authorities in the UK are often not
identified as trafficked victims because of lack of awareness of the referral process It may be
that actions arising from the development of the strategy and dialogue with stakeholders will
give rise to additional activity or costs with reference to child victims of trafficking but these are
not known and cannot be estimated at this time
PART 3 - CONFISCATION OF PROPERTY
39 The Bill will provide police with powers to detain the property such as cars boats etc of
a person arrested for a trafficking offence This power will be exercised at the time of arrest and
is not expected to impose any additional costs on the police or others
Costs on the Scottish Administration
40 There will be no additional costs on the Scottish Government as a result of these
provisions Individuals can apply to the court to have vehicles ships or aircraft released from
detention This will be considered as part of the overall case and will not add to the costs to the
criminal justice system
15
httpsnrmhomeofficegovuk
32
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
Costs on other bodies individuals and businesses
41 There will be no additional costs on other public bodies individuals or businesses
including Police Scotland as a result of these specific provisions
Costs on local authorities
42 There will be no additional costs on local authorities as a result of these specific
provisions
PART 4 - TRAFFICKING AND EXPLOITATION PREVENTION AND RISK ORDERS
Introduce new measures to disrupt and prevent trafficking and exploitation
43 The Bill will introduce two new civil orders and associated interim orders to assist in
preventing trafficking and exploitation Trafficking and Exploitation Prevention Orders (TEPOs)
and Trafficking and Exploitation Risk Orders (TEROs) Where an individual has been convicted
of a trafficking or exploitation offence or an offence with a statutory trafficking aggravator a
TEPO may be imposed by a court where there is a risk that that individual may commit a further
human trafficking offence and it is necessary to make the order to protect people from the
physical or psychological harm which might occur if such an offence were committed The
TEPO will prevent the individual from engaging in activities described in the order Where a
person has not been convicted of a trafficking or exploitation offence but a court considers that
the person presents a significant risk of harm to others through the individual committing a
trafficking or exploitation offence the court can impose a TERO restricting specific activities or
imposing requirements These orders will be civil but breach of an order will constitute a
criminal offence with a maximum penalty of five years in prison available to the court
44 The Bill will categorise the trafficking and exploitation offences as lifestyle offences in
order to automatically trigger provisions within the Proceeds of Crime Act 2002 (―the 2002
Act) The definition of an offence as a ―lifestyle offence allows for proceedings under the
2002 Act to confiscate assets or monies from the individual convicted of the offence
Costs on the Scottish Administration
45 The purpose of TEPOs and TEROs is to prevent criminal activity associated with
trafficking and exploitation from arising There will be some cost implications for law
enforcement organisations which will need to monitor the terms of any order imposed by the
courts However these will be offset by the savings made from being able to intervene at an
early stage of criminality if an order has been breached For the equivalent civil orders within the
UK Modern Slavery Bill the UK Government has estimated potential net savings of between
pound130000 and pound1090000 per annum The Scottish Government has not incorporated any
savings for the purpose of Scottish legislation but expects the costs of implementing TEPOs and
TEROs and detention powers to be at least cost neutral for the Scottish Administration and other
public bodies
33
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
46 The Bill will give courts powers to impose a TEPO at the time of sentencing There will
be no immediate additional costs for the courts or COPFS associated with TEPOs imposed as
part of sentencing The Chief Constable of Police Scotland will also be able to apply to the court
for a TEPO to be imposed on a relevant offender previously convicted of a trafficking offence
There will be costs to Police Scotland in making the application and to the SCS and to SLAB in
considering the application As there have been only six previous convictions for trafficking
offences in Scotland the Scottish Government expects the number of applications for TEPOs for
previous convictions to be small one-off and will not add to the overall costs of the criminal
justice system The Chief Constable of Police Scotland can also apply to the court for a TERO
against an individual where it is considered that that individual is likely to commit a trafficking
offence
47 Looking at the equivalent costs for similar civil orders eg Sexual Offences Prevention
Orders the total costs to the SCS the COPFS and SLAB of applying for a TERO or post-
sentencing TEPO are estimated at between pound1000 and pound6000 per order It is not possible to
know how many TEPOs or TEROs might be applied for but assuming a number half the level of
the estimated maximum number of potential convictions for trafficking offences each year (four
to eight) would give estimated costs of between pound2000 (2 x pound1000) and pound24000 (4 x pound6000)
per annum
48 There will be costs to Police Scotland in monitoring TEPOs and TEROs whether
imposed at the time of sentence or by application but this will sit alongside Police Scotlandrsquos
existing crime prevention and investigative responsibilities and is not expected to add to
manpower costs
49 In addition to the costs of imposing and monitoring TEPOs and TEROs there will be
costs associated with prosecuting a breach of a TEPO or TERO Analysis in England and Wales
indicates that breaches of equivalent Serious Crime Prevention Orders are relatively low
Assuming one breach per annum the total combined costs to the COPFS the SCS and SLAB
would be between pound8400 and pound78100 per annum (see the combined costs for either sheriff
court or High Court procedures set out in Table 3 above) Assuming a maximum sentence of
five years the costs to the SPS for additional prison places would be between pound85000 and
pound127500 per annum (ie the pound42500 average costs of a prison place times either two or three
places depending on whether offenders are released early at the halfway or two-thirds point of
their sentence)
50 It is important to remember however that the purpose of TEPOs and TEROs is to
prevent further trafficking and exploitation offences occurring A TEPO or TERO will only be
imposed where a court considers that there is a credible risk of an individual committing such a
crime Any costs associated with the imposition and breach of TEPOs and TEROs needs to be
offset against the potential costs of prosecutions If each TEPO or TERO prevents the costs of a
conviction for an offence as set out in Part 1 above the costs to the Scottish Administration
would be at least cost neutral in terms of saved court and prison places expenditure
34
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
Costs on other bodies individuals and businesses
51 There will be no costs on other bodies businesses or other individuals as a consequence
of these sections
Costs on local authorities
52 There will be no new costs on local authorities as a consequence of these sections
PART 5 - STRATEGY AND REPORTING
Ensure a strategic cross-agency approach to tackling trafficking
53 The Bill places a duty on the Scottish Ministers to prepare publish and regularly review
and update a trafficking and exploitation strategy to assist in ensuring a co-ordinated and
strategic approach to this issue The provisions place a duty on Ministers to consult with such
organisations and individuals as they consider to have a relevant interest in the issues of human
trafficking and exploitation The Bill places a duty on relevant public bodies to be named in
regulations to assist in the preparation and review of the strategy
54 The Bill will place a duty on relevant public authorities to provide anonymised data about
potential human trafficking and exploitation victims to Police Scotland
Costs on the Scottish Administration
55 Activity arising from these provisions within the Bill will build on the activity and
current resources already committed to this area of work
56 Based on similar activities the estimated additional costs to the Scottish Ministers of
preparing and reviewing a trafficking and exploitation strategy will be approximately pound25000
every three years Alongside the preparation and publication of the strategy the Scottish
Ministers would also propose to support additional awareness raising and training activity to
build on the existing awareness raising and training activity already undertaken by relevant
organisations including the NHS Police Scotland and COPFS Consideration would be given to
how best to co-ordinate these resources alongside existing expenditure and activity For the
purposes of the Financial Memorandum and based on current activity additional costs on top of
existing activity are estimated at approximately pound100000 to pound250000 per annum over the first
four years of the Bill This is based on the best estimated costs of preparing and publishing
publicity and guidance material averaged over a number of years The exact costs will depend
on decisions taken in dialogue with stakeholders as part of the preparation of the strategy
57 The Scottish Government anticipates that the costs to relevant public authorities of
providing anonymised data about potential human trafficking victims to Police Scotland will be
marginal Costs to Police Scotland of collating this data will form part of their existing
intelligence gathering activity
35
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
Costs on other bodies individuals and businesses
58 There will be some costs on other bodies individuals and businesses in engaging with the
Scottish Ministers in the preparation and publication of the Strategy For business and
individuals this will be voluntary depending on their willingness to engage For public bodies
their level of engagement will depend on the relevance of the issue of trafficking and
exploitation to their work and their potential contribution to combating this behaviour Any
additional costs are expected to fit within or sit alongside their existing responsibilities for
example with reference to promoting and ensuring equalities and the application of human
rights obligations
Costs on local authorities
59 There will be costs on local authorities associated with engaging in the preparation and
review of the trafficking and exploitation strategy and in awareness raising and training of front-
line staff The additional costs should be marginal on top of the existing guidance and activity
already in place with reference to the identification and support of potential child victims of
trafficking The aim will be to minimise costs for other front-line local authority staff by
adapting the general awareness raising and training materials described above
SUMMARY
60 The table below provides a summary of the costs of each element of the Bill as described
above
Table 7 Summary table of costs for each aspect of the Bill (pound000)
Year 1 Year 2 Year 3 Year 4
Clarifying amp
Strengthening the
Criminal Law ndash Para 28 pound20-pound353 pound190- pound693 pound360-pound900 pound360-pound1073
Ensure the rights of
victims to access and
support - Para 36 pound70-pound140 pound140-pound280 pound220-pound430 pound290-pound580
Introduce new measures to
disrupt and prevent
trafficking pound016
pound0 pound0 pound0
Ensure a strategic cross
agency approach to
tackling trafficking ndash Para
56 pound125-pound275 pound100-pound250 pound100-pound250 pound125-pound275
TOTAL pound215-pound768 pound430-pound1223 pound680-pound1580 pound775-pound1928
16
The Scottish Government considers that the overall costs are at least cost neutral ndash see paragraphs 45 to 50
36
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December
SCOTTISH GOVERNMENT STATEMENT ON LEGISLATIVE
COMPETENCE
On 11 December 2014 the Cabinet Secretary for Justice (Michael Matheson MSP) made the
following statement
―In my view the provisions of the Human Trafficking and Exploitation (Scotland) Bill
would be within the legislative competence of the Scottish Parliament
mdashmdashmdashmdashmdashmdashmdashmdashmdashmdash
PRESIDING OFFICERrsquoS STATEMENT ON LEGISLATIVE
COMPETENCE
On 11 December 2014 the Presiding Officer (Rt Hon Tricia Marwick MSP) made the following
statement
―In my view the provisions of the Human Trafficking and Exploitation (Scotland) Bill
would be within the legislative competence of the Scottish Parliament
37
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December
SP Bill 57ndashEN Session 4 (2014)
HUMAN TRAFFICKING AND EXPLOITATION
(SCOTLAND) BILL
EXPLANATORY NOTES
(AND OTHER ACCOMPANYING DOCUMENTS)
Parliamentary copyright Scottish Parliamentary Corporate Body
Information on the Scottish Parliamentrsquos copyright policy can be found on the website -
wwwscottishparliamentuk
Produced and published in Scotland on behalf of the Scottish Parliamentary Corporate Body by APS
Group Scotland
ISBN 978-1-78534-569-2
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
EXPLANATORY NOTES
INTRODUCTION
1 These Explanatory Notes have been prepared by the Scottish Government in order to
assist the reader of the Bill and to help inform debate on it They do not form part of the Bill and
have not been endorsed by the Parliament
2 The Notes should be read in conjunction with the Bill They are not and are not meant to
be a comprehensive description of the Bill So where a section or schedule or a part of a
section or schedule does not seem to require any explanation or comment none is given
THE BILL
3 The Billrsquos overarching objective is to consolidate and strengthen the existing criminal law
against human trafficking and exploitation and enhance the status of and support for its victims
The Bill will also give Ministers power by regulations to specify relevant authorities to work
with the Scottish Government to develop and implement a Scottish trafficking and exploitation
strategy
4 The Bill will consolidate and clarify existing trafficking offences into one single offence
Current domestic criminal law against human trafficking in Scotland sits in a number of different
Actsmdash
Section 22 of the Criminal Justice (Scotland) Act 20031 (―2003 Act) criminalises
arranging or facilitating a personrsquos travel for the purposes of prostitution and
involvement in the making or production of indecent materials
Section 4 and 5 of the Asylum and Immigration (Treatment of Claimants etc) Act
20042 (―2004 Act) criminalises arranging or facilitating a personrsquos travel for the
purposes of other forms of exploitation
Section 46 of the Criminal Justice and Licensing (Scotland) Act 20103 (―2010 Act)
amends the provisions in the 2003 and 2004 Acts for example to create an offence
under both for someone who arranges or facilitates travel into within or out of a
country other than the UK
5 A more detailed explanation of the Billrsquos purpose can be found in the Policy
Memorandum which also explains the thinking and policy intentions that underpin it
THE STRUCTURE AND A SUMMARY OF THE BILL
6 The Bill is in six parts
1 httpwwwlegislationgovukasp20037
2 httpwwwlegislationgovukukpga200419
3 httpwwwlegislationgovukasp201013
3
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
7 Part 1 (Offences) includes provision on the creation of a single offence of human
trafficking for all types of exploitation of both adults and children establishes statutory
aggravators of human trafficking for use with other crimes and reframes the current standalone
offence of slavery servitude and forced or compulsory labour
8 Part 2 (Protection of victims) includes provision on prosecutorial guidelines for the
prosecution of victims and provision about the support and assistance to which adult victims are
entitled
9 Part 3 (Confiscation of property) includes provision on detention and forfeiture of
property and proceeds of crime
10 Part 4 (Trafficking and exploitation prevention and risk orders) includes provision on two
new preventive orders the trafficking and exploitation prevention order and the trafficking and
exploitation risk order
11 Part 5 (Strategy and reporting) includes provision on the trafficking and exploitation
strategy and the duty on specified Scottish public authorities to notify and provide information
about victims
12 Part 6 contains general and ancillary provisions
PART ONE ndash OFFENCES
Human trafficking
Section 1 Human trafficking
13 Section 1 provides for a single offence of human trafficking for the purpose of all forms
of exploitation of adults and children See paragraph 4 above for existing offence legislation
14 Subsection (1) defines the conduct which constitutes the offence of human trafficking A
person commits an offence if the person arranges or facilitates another personrsquos travel with a
view to the other person being exploited It is irrelevant whether that other person consents to
the arrangement or facilitation of travel (subsection (2)) Examples of what constitutes arranging
or facilitating another personrsquos travel for these purposes include (but are not limited to)mdash
recruiting the person with a view to transporting or transferring the person
transporting or transferring the person
transferring or exchanging control of the person
harbouring or receiving the person
15 Subsection (3) provides that the person arranges or facilitates another personrsquos travel with
a view to the other person being exploited only if the person intends to exploit the other person
or the person knows or ought to know the other person is likely to be exploited (in any part of the
world) during or after the travel
4
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
16 Subsection (5)(a) provides that on summary conviction of the offence the maximum
penalty is imprisonment for a term not exceeding 12 months a fine not exceeding the statutory
maximum or both Subsection (5)(b) provides that on conviction of the offence on indictment
the maximum penalty is imprisonment for life or a fine or both
Section 2 Application of offence to conduct in United Kingdom and elsewhere
17 Section 2 provides for the application of the human trafficking offence to conduct in the
United Kingdom and elsewhere reflecting the fact that human trafficking activity may involve
activity that is completely or partly outwith Scotland This measure implements the terms of
Article 10(2)(c) (jurisdiction) of the Directive of the European Parliament and of the Council on
preventing and combating trafficking in human beings and protecting victims replacing
Framework Decision 2002629JHA (―EU Directive)4 It should be read with the definition of
travel in section 36
18 Subsections (1) and (2) provide that a UK national a person who at the time of the
offence was habitually resident in Scotland or a body incorporated under the law of a part of the
UK commits an offence of human trafficking regardless of where the arranging or facilitating of
travel takes place or where the travel itself takes place Whether or not a person is ―habitually
resident in Scotland will be determined in the light of all the facts and circumstances of the
case
19 Subsection (3) provides that any other person commits the offence of human trafficking
only if any part of the arranging or facilitating of travel takes place in the UK or the travel
consists of arrival in or entry into departure from or travel within the UK
Section 3 Exploitation for purposes of offence of human trafficking
20 Section 3 describes what constitutes exploitation for the purposes of the offence of human
trafficking By virtue of subsection (1) only exploitation of a type mentioned in subsections (2)
to (8) is to be regarded as exploitation in this context
21 Subsection (2) provides that a person is exploited if the person is the victim of conduct
which involves the commission of an offence under section 4 of the Bill (slavery servitude and
forced or compulsory labour) or would be if the conduct occurred in Scotland
22 Subsections (3) to (5) deal with prostitution and sexual exploitation and provide that a
person is exploited ifmdash
another person exercises control direction or influence over the first personrsquos
prostitution in a way which shows that the other person is aiding abetting or
compelling the prostitution
another person involves the first person in the making or production of obscene or
indecent material or
4 httpeur-lexeuropaeuLexUriServLexUriServdouri=OJL201110100010011ENPDF
5
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
the person is the victim of conduct constituting one of a number of listed sexual
offences (or which would constitute such an offence if that conduct occurred in
Scotland)
23 The categories of exploitation related to prostitution and the making of indecent material
are drawn from the existing offence in section 22 of the 2003 Act The category related to other
forms of exploitation in connection with sexual offences is a new development in Scots law
though has some precedent under the Sexual Offences Act 2003 in England and Wales
24 Subsection (6) deals with exploitation relating to the removal of organs etc It provides
that a person is exploited in that context if they are encouraged required or expected to do
anything constituting either an offence under Part 1 of the Human Tissue (Scotland) Act 2006
which deals principally with removal of organs for transplantation or any other offence under
the law of Scotland involving removal of a part of the human body (or anything which would
constitute such an offence were it done it Scotland) This latter category ensures that the
removal of organs or tissue for purposes other than transplantation is caught by the trafficking
offences This covers the removal of body parts for research sacrificial rites consumption etc
For these purposes a part of the body comprises all parts of the body including blood
25 Subsections (7) and (8) make more general provision Subsection (7) establishes that a
person is exploited if force threats or deception are used to induce the person to provide services
or benefits or to enable another person to acquire benefits Subsection (8) provides that a person
is exploited if another person takes advantage of the personrsquos vulnerability to use or attempt to
use the person to provide services or benefits (or to enable another person to acquire benefits)
This will ensure the offence captures those cases where the role of the person being exploited is
entirely passive and where the person is being used as a tool by which others can gain a benefit
of any kind
26 The categories of exploitation in subsections (6) to (8) are derived from section 4 of the
2004 Act
Slavery servitude and forced or compulsory labour
Section 4 Slavery servitude and forced or compulsory labour
27 Section 4 provides for an offence of slavery servitude and forced or compulsory labour
Subsections (1) and (2) provide that a person is guilty of an offence if that person holds another
person in slavery or servitude or requires that other person to perform forced or compulsory
labour in circumstances which show that the first person knows or ought to know that the person
is being so held The offence must be interpreted in accordance with Article 4 of the European
Convention on Human Rights That Article prohibits a person from being held in slavery or
servitude or being required to perform forced or compulsory labour This is currently an offence
under section 47 of the 2010 Act which was created in response to the case of Siliadin v France5
(where the European Court of Human Rights held that there had been a violation of Article 4 in
relation to the holding of an individual in domestic servitude)
5 Application no 7331601 httphudocechrcoeintsitesengpagessearchaspxi=001-69891
6
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
28 Subsection (3) provides that in assessing whether a person has been the victim of the
offence the court is to have regard to any of the alleged victimrsquos characteristics that make the
person more vulnerable than other people Examples of these characteristics include age health
or family relationships
29 Subsection (4) sets out the maximum penalty available on conviction of the offence of
slavery servitude and forced or compulsory labour This is an increase from the current
maximum penalty for the offence under section 47 of the 2010 Act Subsection (4)(a) provides
that on summary conviction of the offence the maximum penalty is imprisonment for a term not
exceeding 12 months a fine not exceeding the statutory maximum or both Subsection (4)(b)
provides that on conviction of the offence on indictment the maximum penalty is imprisonment
for life a fine or both
Aggravation as to human trafficking
Section 5 General aggravation of offence
30 Section 5 makes provision for a statutory aggravation which applies in cases where an
accused commits any other offence and that offence has a connection with a human trafficking
offence Where an indictment or complaint libels or specifies that an offence is aggravated by a
connection with human trafficking activity and it is subsequently proved that the offence is
aggravated in that way the court must state on conviction that the offence is so aggravated
record the conviction in a way which shows that the offence is so aggravated take the
aggravation into account when determining the appropriate sentence and state the extent of any
difference in the sentence in light of the aggravation (or if there is no difference the reasons for
that) (subsections (1) and (5))
31 Subsection (2) sets out the circumstances in which an offence can be regarded to have
been aggravated by a connection with human trafficking This relies on proof that the accused
was motivated in whole or in part by the objective of committing or conspiring to commit the
offence of human trafficking In terms of subsection (3) it is not material to establishing the
aggravation whether or not the offence of human trafficking was actually committed by the
offender or another person
32 Subsection (4) provides clarification that corroboration is not needed to prove that an
offence is aggravated by a connection with human trafficking activity ndash evidence from a single
source is sufficient This is consistent with the existing law in relation to both corroboration and
statutory aggravations This position is under review pending further parliamentary scrutiny of
the Criminal Justice (Scotland) Bill
Section 6 Aggravation involving public official
33 Section 6 makes similar provision about a statutory aggravation which applies in cases
where a public official acting or purporting to act in the course of official duties commits the
offence of human trafficking
34 Subsection (4) sets out the steps the court must take when it is libelled in an indictment or
specified in a complaint that the offence of human trafficking is aggravated by an abuse of a
7
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
public position and proved that the offence is so aggravated These are similar to the steps which
must be taken in relation to the general aggravation in section 5
35 Subsection (5) defines those to be considered as a public official for the purposes of
section 6 while subsection (6) defines the term ―an international organisation for the purposes
of this section
36 Subsection (7) enables the Scottish Ministers to modify by regulations the definition of
who is a public official and the definition of an international organisation Any such regulations
will be subject to the affirmative procedure
PART 2 ndash PROTECTION OF VICTIMS
Prosecution of victims
Section 7 Lord Advocatersquos guidelines on prosecution of victims of offences
37 Section 7 places a duty on the Lord Advocate to prepare and publish guidelines for
prosecutors about the prosecution of suspected or confirmed victims of the offence of human
trafficking and the offence under section 4 of the Bill
38 Subsection (2) sets out that the guidelines must include factors to be taken into account or
steps to be taken when deciding whether to prosecute a person who does an act which constitutes
an offence having been compelled to do so and that the compulsion is directly attributable to the
person being or appearing to be a victim of an offence of human trafficking or as the case may
be under section 4 of the Bill
39 Subsection (3) provides that the Lord Advocate may from time to time revise the
guidelines
Support and assistance for adult victims of human trafficking
Section 8 Duty to secure support and assistance
40 Article 12 of the Council of Europe Convention on Action against Trafficking in Human
Beings6 (―COE Convention) sets out the support and assistance which must be provided for
trafficked victims The UK Government ratified the COE Convention in December 2008 and
Scotland became bound by its terms in April 2009 Currently there is no statutory basis for
potential victims of trafficking to access support and information on the type of support that they
are entitled to Support is currently provided through support agencies with grant funding from
the Scottish Ministers
41 Section 8 places a duty on the Scottish Ministers to secure the provision of support and
assistance for adult victims of human trafficking on an assessment of needs during a defined
period It also sets out a discretionary power for the Scottish Ministers to arrange the provision
of support and assistance outwith the mandatory period
6 httpconventionscoeintTreatyenTreatiesHtml197htm
8
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
42 Subsection (1) provides that where there are reasonable grounds to believe that an adult is
a victim of human trafficking the Scottish Ministers must secure the provision of such support
and assistance as is necessary given the adultrsquos needs for the relevant period
43 Subsection (2) defines the relevant period It begins on the day it is determined there are
reasonable grounds to believe that the adult is a victim of human trafficking (paragraph (a)) and
ends on the earlier of either the end of a period specified in regulations made by the Scottish
Ministers (paragraph (b)(i)) or the date on which there is a conclusive determination that the
adult is or is not a victim of a human trafficking offence (paragraph (b)(ii))
44 Subsection (3) gives the Scottish Ministers discretion to provide support and assistance
outwith the mandatory period under subsection (2) The support and assistance may be provided
to the adult during the period when a competent authority is determining whether there are
reasonable grounds to believe that the person is a victim of human trafficking (paragraph (a)) It
may also be provided before the date on which there is a conclusive determination in relation to
the adult if the mandatory period has ended by then (paragraph (b)) or after that conclusive
determination for such period as Ministers think appropriate (paragraph (c))
45 Subsection (4) provides a non-exhaustive list of the kind of support and assistance that
may be provided under section 8 The list provides that support and assistance may be provided
in connection with (but not limited to) the followingmdash
accommodation
day to day living
medical advice and treatment
language translation and interpretation
counselling
legal advice
information about other services available to the adult and
repatriation
46 Subsection (5) provides that the Scottish Ministers must ensure that in securing the
provision of support and assistance assistance is only provided where the adult consents
(subsection (5)(a)) and that the provision of assistance is not made conditional on the adult
assisting with a criminal prosecution or investigation (subsection (5)(b))
47 Subsection (6)(a) describes when there are reasonable grounds to believe that an adult is a
victim of a trafficking offence for the purposes of securing support and assistance Subsection
(6)(b) describes what is meant by a ―conclusive determination that an adult is or is not a victim
of an offence of human trafficking for these purposes
48 Subsection (7) defines what is meant by the terms ―competent authority and ―the
Trafficking Convention for the purposes of this section
9
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
PART 3 - CONFISCATION OF PROPERTY
Detention and forfeiture
Section 9 Detention of vehicle ship or aircraft
49 Section 9 sets out the power of a constable to detain a vehicle ship or aircraft if a person
has been arrested for an offence of human trafficking
50 Subsection (1) describes the circumstances where a police constable may detain a vehicle
ship or aircraft Subsection (1)(a) provides that a constable may detain a vehicle ship or aircraft
if a person has been arrested for an offence of human trafficking and the constable has
reasonable grounds to believe that a forfeiture order would be made if the person arrested were
convicted of the offence (subsection (1)(b))
51 Subsection (2) provides for the duration of the detention of the property Subsection
(2)(a) provides that the vehicle ship or aircraft may be detained until a decision is taken as to
whether or not to begin solemn proceedings against the person arrested for the offence In
circumstances where solemn proceedings have begun the property may be detained until the
person is acquitted (subsection (2)(b)(i)) the person is convicted and a decision is made whether
or not to order forfeiture of the property under section 10 (subsection (2)(b)(ii)) or the
proceedings are otherwise concluded (subsection (2)(b)(iii))
52 Subsections (3) and (4) set out the circumstances in which solemn proceedings are to be
taken to have commenced and concluded for the purposes of this section
53 Subsection (5) lists the circumstances in which a person (including the accused) with a
relevant interest in the detained property may apply to the sheriff for release of the vehicle ship
or aircraft Subsection (6) sets out the sheriffrsquos power to order release subject to satisfactory
security being tendered
54 Subsection (7) provides that the sheriff may impose such other conditions as to the
release of the detained property as the sheriff thinks fit
Section 10 Forfeiture of vehicle ship or aircraft
55 Section 10 sets out the power of the court to order forfeiture of a vehicle ship or aircraft
used or intended to be used in connection with an offence of human trafficking
56 Subsections (1) to (3) provides that forfeiture of a vehicle ship or aircraft used or
intended to be used in connection with the offence of human trafficking may be ordered if a
person convicted on indictment of that offence when the offence was committedmdash
owned the vehicle ship or aircraft
was a director secretary or manager of a company which owned it
was in possession of it under a hire purchase agreement
10
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
was a director secretary or manager of a company which was in possession of it
under a hire purchase agreement
in relation to a vehicle was driving it
in relation to a ship or aircraft was the charterer of it or was acting as captain of it
57 Subsection (4) makes special provision about cases where a ship or aircraft is to be
forfeited but the offender does not own it and was not a director secretary or manager of a
company which owns it It provides that in those circumstances forfeiture of a ship or aircraft
may only be ordered if any one of the tests listed in this subsection is satisfied Subsection (4)(a)
provides that if a person who at the time the offence was committed owned the ship or aircraft
or was a director secretary or manager of a company which owned it knew or ought to have
known of the intention to use it in the course of the commission of the offence of human
trafficking then forfeiture of a ship or aircraft may be ordered Subsection (4)(b) provides that
in the case of a ship (other than a hovercraft) if its gross tonnage is less than 500 then forfeiture
of that ship may be ordered Subsection (4)(c) provides that in the case of an aircraft if the
maximum weight at which it may take off in accordance with its certificate of airworthiness is
less than 5700 kilogrammes then forfeiture of that aircraft may be ordered under this section
Protection is provided for particular categories of owner who due to the size of the ship or
aircraft in question or the circumstances in which it is used for trafficking do not know or
reasonably suspect or are unlikely to know or reasonably suspect that the ship or aircraft is
being used in that way There is a greater likelihood that an owner of a vehicle or smaller types
of ships or aircraft will have actual or constructive knowledge that their property is being or
intended to be used for the purposes of trafficking
58 Subsection (5) provides that forfeiture cannot be ordered without giving any person
claiming an interest in the relevant property the chance to make representations
Proceeds of crime
Section 11 Proceeds of Crime Act 2002 lifestyle offences
59 Section 11 amends Schedule 4 to the Proceeds of Crime Act 2002 (―2002 Act) to
categorise all trafficking and exploitation offences as lifestyle offences for the purposes of that
Act A conviction of a lifestyle offence triggers assumptions under the 2002 Act that the accused
has a criminal lifestyle and that the accusedrsquos property is recoverable as criminal proceeds
60 Section 11(a) amends Schedule 4 to the 2002 Act by substituting paragraph 4 thereof
with a list of all offences related to trafficking and thus categorising all such offences as lifestyle
offences for the purposes of the 2002 Act Section 11(b) amends the same Schedule by inserting
a new paragraph 4A to provide that an offence under section 4 of the Bill also constitutes a
lifestyle offence
11
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
PART 4 ndash TRAFFICKING AND EXPLOITATION PREVENTION AND RISK ORDERS
Trafficking and exploitation offences
Section 12 Relevant trafficking or exploitation offences
61 Section 12 provides a list of the relevant trafficking and exploitation offences for the
purposes of trafficking and exploitation prevention and risk orders made under the Act The list
includes repealed provisions as orders (other than orders on sentencing) may still be made with
reference to convictions under such provisions
62 Subsection (2) provides that the Scottish Ministers may modify by regulations the
offences contained in the list Under section 37(2) any such regulations are subject to the
affirmative procedure
Trafficking and exploitation prevention orders
Section 13 Prevention orders on sentencing
63 Section 13 provides that a court may instead of or in addition to dealing with the person
in any other way make a trafficking and exploitation prevention order (TEPO) on sentencing of
an adult
64 Subsection (1) sets out the three circumstances where the court may make a TEPO
against a person on sentencing The first is conviction of an adult of a relevant trafficking and
exploitation offence The second circumstance is acquittal of such an offence by reason of the
special defence set out in section 51A of the Criminal Procedure (Scotland) Act 1995 (which
provides a defence where a person is unable by reason of mental disorder to appreciate the nature
or wrongfulness of their conduct) The third circumstance is a finding of unfitness for trial in
relation to such an offence under section 53F of that Act (which provides that a person is unfit
for trial if it is established on the balance of probabilities that the person is incapable by reason
of a mental or physical condition of participating effectively in that trial) In relation to the third
circumstance there must also be a finding that the adult has done the act constituting the offence
65 Subsection (3) provides that the court may make a TEPO at its own instance or on the
motion of the prosecutor
66 Subsection (4) provides the test for making a TEPO on sentencing The court must be
satisfied that there is a risk that the person in respect of whom the order is to have effect may
commit another offence mentioned in section 12 and that it is necessary to make the prohibitions
and requirements in the order for the purpose of protecting persons generally or particular
persons from the physical or psychological harm which would be likely to occur if the person
committed such an offence
67 Subsection (5) provides a definition of ―the court for the purposes of this section
12
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
Section 14 Prevention orders on application
68 Section 14 provides that the chief constable may apply to a sheriff for a TEPO against an
adult
69 Subsection (2) sets out the appropriate sheriff to whom such an application should be
made
70 Subsection (3) sets out the tests for making a TEPO on application The sheriff must be
satisfied that the person in respect of whom the order is sought is a ―relevant offender
(subsection (3)(a)) that since the person first became a relevant offender the person has acted in
a way which means that there is a risk the person will commit a relevant trafficking or
exploitation offence (subsection (3)(b)) and it is necessary to make the prohibitions or
requirements in the order for the purpose of protecting persons generally or particular persons
from the physical or psychological harm which would be likely to occur if the person committed
such an offence (subsection (3)(c))
71 Subsection (4) provides that conduct which occurred before this section came into force
may be considered when determining whether there is a risk that a person may commit a relevant
trafficking offence
Section 15 Meaning of relevant offender
72 Section 15 defines what is meant by a ―relevant offender for the purposes of section 14
73 Subsection (2) provides that a person is a relevant offender if any of the court disposals
listed in the subsection have been made in the UK in relation to that person and in respect of a
relevant trafficking or exploitation offence (as set out in section 12 of the Bill)
74 Subsections (3) to (5) deal with findings of courts and tribunals outside the United
Kingdom Subsection (3) provides that a person is a relevant offender if under the law of a
country outside the United Kingdom a listed disposal is made in respect of a person in relation
to an offence which is equivalent to an offence listed in section 12 Subsections (4) and (5) set
out tests for determining whether an offence is equivalent to a relevant offence In particular
such offences are acts which constitute offences under the law of the country concerned and
which would constitute a relevant trafficking or exploitation offence under the law of Scotland if
done in the UK by a UK national or person habitually resident in Scotland or as regards the UK
(eg by virtue of the fact that travel was arranged into out of or within the UK)
75 Subsection (6) establishes a mechanism for determining whether an act constituting an
offence in a country outside the UK would constitute an offence under the law of Scotland
76 Subsection (8) provides that for the purposes of this section convictions acquittals
findings and cautions include those which took place before this section comes into force
13
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
Section 16 Contents of prevention orders
77 Section 16 makes provision about the prohibitions or requirements (or both) that may be
contained in a TEPO Each prohibition and requirement in a TEPO is for a fixed period and the
order itself is for a fixed period The order and the prohibitions and requirements may all be for
the same period However the Bill allows some requirements and prohibitions in the order to be
set for a period shorter than that of the order if that is appropriate
78 Subsection (2) provides that both the order and any prohibition or requirement in the
order must have a specified fixed period of at least five years The only exception to that
requirement relates to a prohibition on foreign travel and an order containing only a prohibition
on foreign travel (which is dealt with in section 17) and relates to a period of not more than five
years Subsection (4) provides that a TEPO may prohibit the person in respect of whom the
order is made from doing things or require that person to do things Different prohibitions and
requirements may have effect for different periods
79 Subsection (5) provides that if the court makes a TEPO in respect of a person already
subject to such an order the earlier order will cease to have effect
80 Subsection (6) defines what is meant by ―the court for the purposes of the section
Section 17 Prohibitions on foreign travel
81 Section 17 makes provision about prohibitions on foreign travel in TEPOs
82 Subsection (1) provides that a prohibition on foreign travel contained in a TEPO and
any TEPO which contains such a prohibition and no other prohibitions or requirements must be
for a fixed period of not more than five years
83 Subsection (2) defines a prohibition on foreign travel as a prohibition on travelling to
countries outside the UK (either by reference to particular countries or generally)
84 Subsection (3)(a) determines that a prohibition on foreign travel varied or renewed by
application under section 18 or 19 may be varied or renewed for further fixed periods of no more
than five years each time Subsection (3)(b) requires that an order containing only a foreign
travel restriction may be renewed for up to that fixed period
85 Subsection (4) sets out the requirement on a person in respect of whom a TEPO
containing a prohibition on foreign travel to all countries outwith the United Kingdom has been
made to surrender at a police station each passport that the person has
86 Subsection (5) provides that any passport surrendered must be returned as soon as is
reasonably practicable after the person ceases to be subject to such a prohibition on foreign
travel Circumstances where this subsection would not apply are provided for at subsection (6)
for example where a passport has already been returned to the relevant authority
14
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
Section 18 Orders on sentencing variation renewal and discharge
87 Section 18 makes provision about varying renewing and discharging TEPOs made on
sentencing
88 Subsections (2) to (4) set out general powers in this context The person in respect of
whom the TEPO is made or the prosecutor may apply for variation renewal or discharge of such
a TEPO That application is to be made to the High Court where that court made the order and
to the sheriff otherwise Subsection (4)(b) makes provision about shrieval jurisdiction in this
connection Where the relevant court receives such an application it may vary renew or
discharge individual prohibitions or requirements or add new prohibitions or requirements it
may renew the whole order or it may discharge the whole order
89 Subsection (5) provides that the court must before making an order under this section
give an opportunity to make representations to the person in respect of whom the order is made
the prosecutor and the chief constable Subsection (6) provides that after taking into account
any such representations the court may then make such order as it thinks appropriate
90 Subsection (7) sets out the tests the court must consider when deciding whether to vary
renew or discharge TEPOs made on sentencing (including by adding new prohibitions or
requirements) or any prohibitions or requirements within them Subsection (7)(a) applies the
tests for the making of a TEPO to any variation (including an increase or a relaxation of a
requirement or prohibition) renewal or addition Subsection (7)(b) applies those tests to any
discharge of a prohibition or requirement or of an order
91 Subsection (8) makes it clear that an order varying or renewing a TEPO is subject to the
requirements and prohibitions established by sections 16 and 17 in the same way as the original
order
92 Subsection (9) defines ―prosecutor for the purposes of this section
Section 19 Orders on application variation renewal and discharge
93 Section 19 makes provision about the variation renewal or discharge of TEPOs made on
application
94 Subsections (2) to (4) set out general powers in this context The person in respect of
whom the TEPO is made or the chief constable may apply to the sheriff for variation renewal or
discharge of a TEPO made on application Subsection (4)(b) makes provision about shrieval
jurisdiction in this connection Where the sheriff receives such an application the sheriff may
vary renew or discharge individual prohibitions or requirements or add new prohibitions or
requirements renew the order so that the period of the order itself is extended or discharge the
whole order
95 Subsection (5) provides that the sheriff must before making an order under this section
give an opportunity to make representations to the person in respect of whom the order is made
15
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
and the chief constable Subsection (6) provides that after taking into account any such
representations the sheriff may then make such an order as the sheriff thinks appropriate
96 Subsection (7) sets out the tests the sheriff must consider when deciding whether to vary
renew or discharge TEPOs on application (including by adding new prohibitions or
requirements) or any prohibitions or requirements within them Those tests reflect the tests for
the making of a TEPO
97 Subsection (8) provides that when determining an application under this section the
sheriff may consider conduct which occurred before this section comes into force
98 Subsection (9) makes it clear that an order varying or renewing a TEPO is subject to the
requirements and prohibitions established by sections 16 and 17 in the same way as the original
order
Section 20 Interim prevention orders
99 Section 20 gives power to a sheriff to make an interim TEPO while the main application
under section 14 is being determined The sheriff may make such an order if the sheriff
considers it just to do so (subsection (1)) and such an order may contain prohibitions or
requirements (or both) in relation to the person in respect of whom the order is to have effect
(subsection (2)) Those prohibitions or requirements may relate to things to be done or not done
in any part of Scotland or anywhere outwith Scotland (subsection (3))
100 Subsection (4) provides that an interim TEPO will only have effect for a fixed period
specified in the order and will cease to have effect on the determination of an application for a
TEPO under section 14 if that fixed period has not expired
101 Subsection (5) allows for an application to a sheriff in the sheriffdom of the sheriff who
made the interim TEPO for variation or discharge of that order Such an application may be
made by the person in respect of whom the order was made or the chief constable
Section 21 Appeals prevention orders
102 Section 21 provides for an appeals process in relation to TEPOs and interim TEPOs
103 Subsection (1) makes provision about TEPOs made on sentencing and any variation or
renewal of such a TEPO These are to be treated as sentences for the purposes of any appeal
104 Subsections (2) (3) and (4) make provision about appeals in relation to TEPOs made on
application any variation or renewal of such a TEPO and interim TEPOs The person in respect
of whom the order was made or the chief constable may appeal against any of these orders
16
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
Trafficking and exploitation risk orders
Section 22 Risk orders
105 Section 22 provides that the chief constable may apply to a sheriff for a trafficking and
exploitation risk order (TERO) against an adult A TERO differs from a TEPO in that it may be
made where a person has not previously been convicted of a trafficking or exploitation offence
but the personrsquos behaviour indicates a risk that others may be at harm as a result of that person
committing such an offence and intervention at an early stage is necessary to prevent that harm
A TEPO can only be made where a relevant offence has already been committed
106 Subsection (2) sets out the appropriate sheriff to whom an application for such an order
may be made
107 Subsection (3) sets out the tests for making a TERO The sheriff may only make an order
if satisfied that the person in respect of whom the order is sought has acted in a way which
means that there is a risk the person may commit a relevant trafficking or exploitation offence
(subsection (3)(a)) and it is necessary to make the prohibitions or requirements in the order for
the purpose of protecting persons generally or particular persons from the physical or
psychological harm which would be likely to occur if the person committed such an offence
(subsection (3)(b))
108 Subsection (4) provides that in assessing those tests the sheriff may consider conduct
which occurred before this section comes into force
Section 23 Contents of risk orders
109 Section 23 makes provision about the prohibitions or requirements (or both) that may be
contained in a TERO Each prohibition and requirement in a TERO is for a fixed period and the
order itself is for a fixed period The orders and the prohibitions or requirements may all be for
the same period However the Bill allows some requirements and prohibitions in the order to be
set for a shorter period if that is appropriate
110 Subsection (2) provides that both the order and any prohibition or requirement in the
order must have a specified fixed period of at least two years However this does not apply to a
prohibition on foreign travel or to an order that contains a prohibition on foreign travel and no
other prohibitions or requirements Such a prohibition (or an order containing only such a
prohibition) must be for a fixed period of no more than five years under section 24(1))
111 Subsection (4) provides that a TERO may prohibit the person in respect of whom the
order is made from doing things or require that person to do things Different prohibitions and
requirements may have effect for different periods
112 Subsection (5) provides that if the sheriff makes a TERO in relation to a person already
subject to such an order the earlier order will cease to have effect
17
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
Section 24 Prohibitions on foreign travel
113 Section 24 makes provision about prohibitions on foreign travel contained in a TERO
114 As noted above subsection (1) provides that a prohibition on foreign travel contained in a
TERO and any TERO which contains such a prohibition and no other prohibitions or
requirements must be for a fixed period of not more than five years
115 Subsection (2) defines a ―prohibition on foreign travel as a prohibition on travelling to
countries outwith the UK (either by reference to particular countries or generally)
116 Subsection (3)(a) determines that a prohibition on foreign travel varied or renewed under
section 25 may be varied or renewed for further fixed periods of no more than five years each
time Subsection (3)(b) requires that an order containing only a foreign travel restriction may be
renewed for up to that fixed period
117 Subsection (4) sets out the requirement on a person in respect of whom a TERO has been
made containing a prohibition on foreign travel to all countries outwith the United Kingdom to
surrender at a police station each passport that the person has Subsection (5) provides that any
passport surrendered must be returned as soon as is reasonably practicable after the person
ceases to be subject to a prohibition on foreign travel to all countries outwith the United
Kingdom Circumstances where this subsection would not apply are provided for at subsection
(6) for example where a passport has already been returned to the relevant authority
Section 25 Variation renewal and discharge of risk orders
118 Section 25 makes provision about the variation renewal or discharge of TEROs
119 Subsections (1) to (3) set out general powers in this context The person in respect of
whom the TERO is made or the chief constable may apply to the sheriff for variation renewal or
discharge of a TERO Subsection (3) makes provision about shrieval jurisdiction in this
connection Where the sheriff receives such an application the sheriff may vary renew or
discharge individual prohibitions or requirements or add new prohibitions or requirements
renew the whole order or discharge the whole order
120 Subsection (4) provides that the sheriff must before making an order under this section
give an opportunity to make representations to the person in respect of whom the order is made
and the chief constable Subsection (5) provides that after taking into account any such
representations the sheriff may then make any order the sheriff considers appropriate
121 Subsection (6) sets out the tests the sheriff must consider when deciding whether to vary
renew or discharge TEROs (including by adding new prohibitions or requirements) or any
prohibitions or requirements within them Subsection (6)(a) applies the tests for the making of a
TERO to any variation (including an increase or a relaxation of a requirement or prohibition)
renewal or addition Subsection (6)(b) applies those tests to any discharge of a prohibition or
requirement or of an order
18
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
Section 26 Interim risk orders
122 Section 26 provides that a sheriff may make an interim TERO while the main application
under section 22 is being determined The sheriff may make such an order if the sheriff
considers it just to do so (subsection (1)) and such an order may contain prohibitions or
requirements (or both) in relation to the person in respect of whom the order is to have effect
(subsection (2)) Those prohibitions or requirements may relate to things to be done or not done
in any part of Scotland or anywhere outwith Scotland (subsection (3))
123 Subsection (4) provides that an interim TERO will only have effect for a fixed period
specified in the order and will cease to have effect on the determination of the main application
if that fixed period has not already expired
124 Subsection (5) allows for an application for variation or discharge of an interim TERO
(or a requirement or prohibition in the order) to be made to a sheriff in the sheriffdom of the
sheriff who made the interim order by the person in respect of whom the order was made or the
chief constable (subsection (6))
Section 27 Appeals risk orders
125 Section 27 provides for an appeals process in relation to TEROs and interim TEROs and
any order varying or renewing such a TERO or interim TERO The person in respect of whom
the order was made or the chief constable may appeal against any of these orders
Offences and supplementary provision
Section 28 Offences
126 Section 28 makes provision about breach of TEPOs and TEROs
127 Subsections (1) and (2) provide that a person commits an offence if that person does
anything which the person is prohibited from doing by an order or fails to do anything which the
person is required to do by a TEPO or a TERO or an interim TEPO or TERO
128 Subsection (3) makes provision about penalties in relation to these offences A person
who commits an offence under this section is liable on summary conviction to imprisonment for
a term not exceeding 12 months or a fine not exceeding the statutory minimum (or both) On
conviction on indictment that person is liable to imprisonment for a term not exceeding five
years or a fine (or both)
Section 29 Enforcement of other UK orders
129 Section 29 provides that the Scottish Ministers may modify by regulations the list of
orders at section 28(2) so that a breach of those orders in Scotland constitutes an offence under
section 28(1) The orders which may be added are ―relevant UK orders Those are described in
subsection (2) as orders under the law of England and Wales or Northern Ireland which appear to
the Scottish Ministers to be equivalent or similar to TEPOs TEROs or interim TEPOs or
TEROs
19
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
Section 30 Interpretation of Part 4
130 Section 30 defines certain terms used in Part 4
PART 5 - STRATEGY AND REPORTING
Section 31 Trafficking and exploitation strategy
131 Section 31 places a duty on the Scottish Ministers to prepare a trafficking and
exploitation strategy The strategy under this section is a strategy which sets out such actions
arrangements and outcomes as the Scottish Ministers consider appropriate in relation to the
conduct which constitutes an offence under this Act
132 Subsection (3) lists some of the matters which may be set out in the strategy though that
list is not exhaustive Those matters include for example training and awareness raising in
relation to the detection and prevention of the conduct which constitutes an offence of human
trafficking or an offence under section 4
Section 32 Review and publication of strategy
133 Subsection (1) of section 32 provides that the strategy prepared under section 31 must be
reviewed by the Scottish Ministers every three years Following a review the Scottish Ministers
are required by subsection (2) to prepare a report on the review including an assessment of the
extent to which the strategy has been complied with and may prepare a revised strategy If a
decision is taken following such a review not to prepare a revised strategy the Scottish Ministers
must set out their reasons for that decision
134 Subsection (4) places a duty on the Scottish Ministers to consult with those likely to have
an interest in the strategy before preparing or reviewing the strategy Those likely to have an
interest include but are not limited to businesses support agencies faith based groups etc
135 Subsection (5) requires the Scottish Ministers to publish and lay before the Scottish
Parliament each strategy and report prepared under this section
Section 33 Duty to co-operate on strategy
136 Section 33 provides that Scottish public authorities as specified in regulations that may
be made by the Scottish Ministers must provide such information and assistance as the Scottish
Ministers may reasonably require and otherwise co-operate with the Scottish Ministers in the
preparation or review of the strategy A specified public authority could include for example
Police Scotland and local authorities
Section 34 Duty to notify and provide information about victims
137 Section 34 places a duty on specified Scottish public authorities to notify the chief
constable of the Police Service of Scotland about a person who is or appears to be a victim of
20
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
an offence under section 1 or section 4 This duty would not affect any other general right to
report information relating to crime
138 Subsection (2) requires that a notification relating to an adult is anonymised and does not
include any information that identifies the adult or enables the adult to be identified unless the
adult consents to that data being provided
139 Subsection (3) provides that the Scottish Ministers may by regulations specify the
Scottish public authorities who are to be subject to this duty and may make provision about the
information to be included in the notification The regulations will be subject to the negative
procedure
PART 6 ndash FINAL PROVISIONS
Section 35 Offences by bodies corporate etc
140 Section 35 provides that where an offence under the Bill was committed by a body
corporate or a Scottish partnership or other unincorporated association and it is proved that the
offence was committed with the consent or connivance of or was attributable to any neglect on
the part of a relevant individual or someone purporting to be acting in the capacity of a relevant
individual that individual as well as the body corporate partnership or unincorporated
association commits the offence and is liable to be proceeded against and punished accordingly
141 Subsection (2) defines what is meant by a ―relevant individual for the purpose of this
section
Section 36 Interpretation
142 Section 36 defines certain terms for the purposes of the Bill for example the definition
of ―travel
Section 37 Regulations
143 The Scottish Ministers are given various powers under this Bill to make regulations
Section 37 provides for the parliamentary procedure which is to be applicable in relation to each
of those powers
Section 38 Ancillary provision
144 Section 38 provides that the Scottish Ministers may make regulations containing such
incidental supplementary consequential transitional transitory or saving provision as they
consider necessary or expedient for the purposes of or in connection with the provisions of the
Bill
21
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
Section 39 Minor and consequential amendments
145 Section 39 introduces the schedule which makes minor amendments and amendments
consequential on the provisions of the Bill Given their replacement in Part 1 of the Bill the
schedule repeals the current offences in relation to human trafficking (section 22 of the 2003 Act
and section 4 of the 2004 Act) and slavery servitude and forced or compulsory labour (section
47 of the 2010 Act)
Section 40 Crown application
146 Section 40(1) provides that none of the provisions made by or under the Act are capable
of making the Crown criminally liable In accordance with subsection (2) enforcement of
offences against the Crown is to be done by the Scottish Ministers or any other public body or
office-holder with responsibility for enforcing the provision applying to the Court of Session for
a civil declarator of non-compliance This provision does not apply to persons in the public
service of the Crown
Section 41 Commencement
147 Section 41 provides that sections 36 37 38 40 41 and 42 of the Bill come into force on
the day after Royal Assent All other provisions are to come into force on a day appointed by
regulations made by the Scottish Ministers
22
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
FINANCIAL MEMORANDUM
INTRODUCTION
1 This document relates to the Human Trafficking and Exploitation (Scotland) Bill (―the
Bill) introduced in the Scottish Parliament on 11 December 2014 It has been prepared by the
Scottish Government to satisfy Rule 932 of the Parliamentrsquos Standing Orders It does not form
part of the Bill and has not been endorsed by the Parliament
2 The purpose of the Bill is to consolidate and strengthen the existing criminal law against
human trafficking and exploitation and enhance the status and support provided to victims Bill
provisions are in the following Partsmdash
Part 1 (Offences) includes provision on the creation of a single offence of human trafficking
for all types of exploitation of both adults and children establishes statutory aggravators of
human trafficking for use with other crimes and reframes the current standalone offence of
slavery servitude and forced or compulsory labour
Part 2 (Protection of victims) includes provision on prosecutorial guidelines for the
prosecution of victims and provision about the support and assistance to which adult victims
are entitled
Part 3 (Confiscation of property) includes provision on detention and forfeiture of property
and proceeds of crime
Part 4 (Trafficking and exploitation prevention and risk orders) includes provision on
two new preventive orders the trafficking and exploitation prevention order and the
trafficking and exploitation risk order
Part 5 (Strategy and reporting) includes provision on the trafficking and exploitation
strategy and the duty on specified Scottish public authorities to notify and provide
information about victims
Part 6 contains general and ancillary provisions
3 This Financial Memorandum considers the financial implications of each of the elements
of the Bill where relevant
BACKGROUND
4 Before considering the financial implications associated with the specific provisions
within the Bill it is important to consider both the current estimated extent of human trafficking
in Scotland and existing activity by public bodies and others in response to this issue
23
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
Extent of human trafficking in Scotland
5 Human trafficking is by its nature a hidden crime The National Referral Mechanism
(NRM) is the process set up by the UK Government to identify and support victims of trafficking
in the UK The NRM is also the mechanism by which the UK Human Trafficking Centre
collects data about potential victims of trafficking Information about suspected child and adult
victims of human trafficking is referred by relevant ―first responder organisations such as the
police and third sector bodies for example Migrant Help and the Trafficking Awareness Raising
Alliance (TARA) Referrals relate to victims trafficked from outside and within the UK The
table below summarises the most recent available information on NRM referrals from first
responder organisations in Scotland
Table 1 Recent referrals from first responders in Scotland of potential child and adult
human trafficking victims to the National Referral Mechanism
2012 2013
Adults 67 77
Children 29 22
Total 96 99
of all UK Referrals 8 6
Source National Crime Agency National Referral Mechanism Statistics 2012 and 20131
6 Various reports confirm that the number of victims referred through the NRM is likely to
be a significant underestimate of the actual number of potential victims of trafficking For
example the Equality and Human Rights Commission Inquiry into Human Trafficking in
Scotland (2011) noted ―estimates of identified potential victims do not reflect what is likely to be
a much greater number of unidentified victims2
7 The UK National Crime Agency (NCA) Strategic Assessment of the Nature and Scale of
Human Trafficking in the UK3 aims to provide an indication of the nature and scale of human
trafficking beyond the number of referrals to the NRM The assessment is produced using
intelligence held by the NCA the NRM and intelligence information collected from agencies
such as Police Scotland the Home Office Gangmastersrsquo Licensing Authority and non-
government organisations The assessment removes information of potential victims referred to
the NRM who have received a negative ―reasonable grounds or ―conclusive decision (ie it
has been confirmed that they are not victims of trafficking) or duplicate information about
individuals (ie the same person has been referred more than once or by more than one agency)
to show a total number of ―unique potential victims of trafficking The NCA Assessment for
2013 indicated that there were significantly more unique potential victims of human trafficking
identified across the UK than the numbers referred to the NRM even excluding those that
received a negative decision and that the number of unique victims was increasing
1 httpwwwnationalcrimeagencygovukpublications399-nca-strategic-assessment-the-nature-and-scale-of-
human-trafficking-in-2013file 2httpwwwequalityhumanrightscomsitesdefaultfilesdocumentsScotlandHuman_Trafficking_in_Scotland_inq
uiry_into_human_trafficking_in_scotland-full-report_pdf_pdf 3 httpwwwnationalcrimeagencygovukpublications399-nca-strategic-assessment-the-nature-and-scale-of-
human-trafficking-in-2013file
24
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
Table 2 Comparison of recent UK referrals to the National Referral Mechanism and the
National Crime Agency Strategic Assessment of the Scale of Human Trafficking
2012 2013 Change
Referred to NRM 778 1095 +41
NCA Assessment No of
Unique Potential Victims
Identified
2255 2744 +22
Source National Crime Agency Strategic Assessment of the Nature and Scale of Human
Trafficking in the UK4
8 For Scotland the NCA Assessment for 2013 identified 55 unique potential victims of
human trafficking compared with 99 referrals to the NRM It is not known why in contrast to
the position in England and Wales the NCA Assessment for Scotland is lower than the NRM
referrals although it will exclude potential victims who received a negative conclusive decision
and duplicate referrals However these numbers must be treated with significant caution There
remains strong conviction amongst law enforcement bodies and victims organisations that there
are more victims of trafficking than are identified and that even once identified victims are
often unwilling to engage with authorities or identify themselves as having been trafficked For
the purpose of this Financial Memorandum the Scottish Government has accepted the NCA
assessment that there are likely to be between two and three times as many potential victims of
trafficking as are currently identified through the NRM This assessment is based on the Scottish
Governmentrsquos best understanding of the hidden nature of this crime and the known reluctance of
some victims to identify their trafficked status or to engage with public authorities
Criminal justice response to human trafficking and exploitation
9 There have been relatively few prosecutions and convictions for human trafficking
offences under existing criminal justice legislationmdash
The Criminal Justice (Scotland) Act 20035 (―the 2003 Act) provides for offences of
trafficking for the purposes of exploitation by way of prostitution
The Asylum and Immigration (Treatment of Claimants etc) Act 20046 (―the 2004
Act) provides for offences of trafficking for labour and other forms of exploitation
The Criminal Justice and Licensing (Scotland) Act 20107 (―the 2010 Act) amended
and extended the 2003 and 2004 Acts and created a standalone offence of holding
someone in slavery or servitude or requiring a person to perform forced or
compulsory labour
10 The first successful convictions for human trafficking in Scotland were in 2011 under
section 22 of the 2003 Act for trafficking for the purposes of prostitution During 2013 a total of
four people were convicted of human trafficking offences - one person under section 22 of the
2003 Act and three people under section 4 of the 2004 Act for trafficking for forced marriage
4 httpwwwnationalcrimeagencygovukpublications399-nca-strategic-assessment-the-nature-and-scale-of-
human-trafficking-in-2013file 5 httpwwwlegislationgovukasp20037
6 httpwwwlegislationgovukukpga200419
7 httpwwwlegislationgovukasp201013
25
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
The average custodial sentence length for those convicted of trafficking offences was 847 days
(just under two years and four months) as well as any confiscation order imposed
11 Although the number of convictions for trafficking offences has been small police and
the Crown Office and Procurator Fiscal Service (COPFS) have confirmed that even though it is
not possible to always prove the trafficking offence where a credible suspicion exists people
suspected of involvement with trafficking can and often are prosecuted and convicted for other
crimes such as crimes associated with prostitution forced marriage immigration offences and
drugs offences etc
12 Police Scotland has established a dedicated National Human Trafficking Unit to enhance
the police response to human trafficking through awareness raising intelligence gathering
training and providing divisions with advice and specialist knowledge The COPFS has
appointed dedicated expert fiscals to prosecute human trafficking offences
Support for victims of trafficking
13 The Scottish Government currently allocates direct grant funding to non-government
organisations to provide and facilitate immediate support and assistance to the adult victims of
human trafficking This support can include immediate safe accommodation psychological
support assistance in accessing medical treatment material assistance interpretation and
translation and assistance either with repatriation or securing longer-term access to mainstream
services and support such as welfare benefits and housing The provision of support and
assistance is not conditional on the potential victim being willing to participate in the criminal
justice process Under the NRM victims of trafficking are guaranteed ―a recovery and reflection
period to recover from their experience escape the influence of those alleged to have trafficked
or exploited them and consider whether to engage with authorities The Council of Europe
Convention on Action Against Trafficking in Human Beings8 provides for a reflection period of
at least 30 days for all trafficked victims when there are reasonable grounds to believe that the
person concerned is a victim The current minimum recovery and reflection period in Scotland
and the rest of the UK is 45 days
14 In 2013-14 total grant funding of pound723000 was provided by the Scottish Government
towards the costs of ensuring immediate support and assistance for the adult victims and
potential victims of trafficking in Scotland This funding was provided through two non-
government organisationsmdash
the TARA Service which works with women aged 18 years and over across
Scotland where there are concerns that they have been trafficked for commercial
sexual exploitation and
Migrant Help a UK-wide organisation providing support and advice services to
migrants including new asylum claimants refugees EU nationals etc
15 Support for the child victims of trafficking is co-ordinated by local authorities as part of
their child protection arrangements and in line with the policy intention that children remain
8 httpwwwcoeinttdghlmonitoringtraffickingdocsconvntnCETS197_enasp
26
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
children first and that their needs should be treated accordingly The Scottish Government has
produced a toolkit for agencies working with children and young people to ensure that staff are
able to identify trafficked children and make appropriate referrals so that victims can receive
protection and support The toolkit is designed to be used in conjunction with National Child
Protection Guidance9 which was first published in 2010 and refreshed in 2014 and other
relevant national and international guidance Information about current expenditure on child
victims of trafficking is not recorded separately from information about wider expenditure on
child protection services
Lord Advocate guidance on prosecution policy
16 In his letter of 21 January 2013 to the Scottish Parliament European and External
Relations Committee10
the Lord Advocate set out the current arrangements for fiscals
considering the prosecution of a confirmed or potential victim of human trafficking where it is
believed or claimed that the crime was committed as a direct consequence of the personrsquos
trafficked status The letter set out the basis for the current Lord Advocatersquos guidance to
prosecutors including the presumption against the prosecution of a credible trafficking victim
for crimes that arise as a consequence of the victimrsquos trafficked status
Human trafficking strategic approach awareness raising and training
17 The first Scottish Human Trafficking Summit was hosted by the Cabinet Secretary for
Justice in October 2012 The summit brought together key law enforcement public private and
third sector organisations with an interest in human trafficking Following the summit a number
of strategic collaborative actions were agreed and progressed including with reference to
awareness raising and training for frontline staff data collection and analysis identification care
and support for both child and adult victims of trafficking and enhancing enforcement
18 One specific workstream related to awareness raising and training of front-line staff
likely to come into contact with trafficking victims or potential instances of trafficking
Following the summit Police Scotland with support from the Scottish Government and others
prepared published and circulated widely an awareness raising leaflet ndash Reading the Signs11
ndash to
assist police officers and staff in other front line posts in identifying the signs of potential
trafficking The Scottish Government also participated with the UK Government in a UK-wide
public awareness raising campaign about modern slavery and trafficking
19 In addition to general awareness raising specific training material was prepared for key
front-line staff For example all police officers were required to undertake an e-learning course
on human trafficking A special leaflet for health workers was prepared and circulated by NHS
Health Scotland An e-learning module for health workers about their role in identifying and
9 httpwwwscotlandgovukPublications2014053052
10httpwwwscottishparliamentukS3_EuropeanandExternalRelationsCommitteeGeneral20DocumentsLetterfro
mTheLordAdvocatepdf 11
httpwwwscotlandpoliceukassetspdf174967human-traffickingview=Standard
27
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
responding to victims of trafficking was made available through the National Gender Based
Violence and Health Programme12
IMPACT OF SPECIFIC PROVISIONS
PART 1 - OFFENCES
Single trafficking offence
20 The Bill establishes a new single offence of human trafficking for all types of
exploitation for both adults and children replacing existing separate criminal offences (see
paragraph 9 above) As noted above to date there have been relatively small numbers of
prosecutions under existing trafficking offences
21 The maximum penalty for conviction on indictment for the single trafficking offence will
be life imprisonment compared with a maximum of 14 years for the current separate offences
Although it will be for the court to decide how to sentence people convicted under the new single
offence in any given case it is likely that the availability of a higher maximum sentence will
have cost implications for the Scottish Prison Service (SPS)
Revised slavery servitude and forced labour offence
22 The Bill will also repeal and replace the existing exploitation offence within section 47 of
the 2010 Act which criminalises holding someone in slavery or servitude or requiring them to
perform compulsory or forced labour The offence will be revised and strengthened to allow the
court to consider in assessing whether a person has been a victim of an offence the victimrsquos
characteristics such as age physical or mental illness disability or where relevant family
relationships The maximum penalty for the offence will be increased from 14 years for the
current offence to life imprisonment for a conviction on indictment
Statutory aggravators
23 The Bill makes provision for statutory aggravators which apply in cases where an
accused person commits an offence connected with human trafficking and for when the offence
is committed in connection with the accusedrsquos position as a public official The court must take
the aggravation into account in determining the appropriate sentence if it is proved that the
offence is aggravated in this way The statutory aggravator is not anticipated to have any
substantial financial implications for public private or third sector bodies or for individuals
Costs on the Scottish Administration
24 Consolidating and clarifying the existing criminal law on trafficking and exploitation
alongside other measures arising from the Bill and the trafficking and exploitation strategy
including training and awareness raising and support for victims should increase the potential
for successful investigations prosecutions and convictions of human trafficking and exploitation
offences There have been six successful prosecutions for a specific trafficking offence to date in
Scotland with an average custodial sentence length of two years and four months against a
12
httpwwwgbvscotnhsuk
28
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
maximum possible sentence of 14 years The maximum number of prosecutions in any one year
was four individuals in two separate cases
25 Police and prosecutors already have in place specialist resources for investigating and
prosecuting human trafficking and exploitation offences and these provisions will not add to
these costs Law enforcement agencies have confirmed that whilst the number of prosecutions
for specific trafficking offences has been low where victims are identified but are unwilling to
testify individuals suspected of trafficking and exploitation will be prosecuted in court for other
related offences The Lord Advocate has identified that ―If we donrsquot have the evidence [to
prosecute for a specific human trafficking offence] we prosecute for fraud ID theft or asylum
and immigration offences13
26 The Scottish Government does not anticipate therefore significant additional cost
implications for law enforcement agencies or courts as cases will often proceed with a
trafficking offence alongside or in place of other related offences For the same reason the
Scottish Government does not anticipate significant additional cost on the Scottish Legal Aid
Board (SLAB) However if it is assumed that the number of successful trials proceeding in any
single year doubles from two to four there would be some additional costs on the COPFS the
Scottish Court Service (SCS) and SLAB based on the average unit costs for cases proceeded
either through Sheriff Court Solemn procedure or through the High Court These estimated costs
depending on whether cases are proceeded through the High Court or Sheriff Court solemn
procedure are illustrated in the table below
Table 3 Estimated unit costs of additional trial procedures through either High Court or
Sheriff Court solemn procedure (pound000)
Average prosecution
costs per procedure
(COPFS)
Average court costs
per procedure (SCS)
Average legal aid
costs per procedure
(SLAB)
Sheriff Court solemn
procedure (pound000) pound49 pound19 pound16
High Court (pound000) pound556 pound90 pound135
Estimated average
costs of 2 additional
trial procedures 4
accused per annum
(pound000)
pound99-pound1112 pound38-pound180 pound64-pound540
Source costs of the Criminal Justice System in Scotland Dataset (2013)14
27 There will also be costs to the SPS both through any increase in the number of successful
convictions for trafficking and exploitation offences and an anticipated increase in the average
length of custodial sentence for these crimes It is not possible to know for certain the total
13
httpwwwdailyrecordcouknewsscottish-newsonly-three-successful-prosecutions-brought-4457684 14httpwwwscotlandgovukTopicsStatisticsBrowseCrimeJusticePublicationscostcrimjustsc
otcostcrimjustdatasethttpwwwscotlandgovukTopicsStatisticsBrowseCrimeJusticePublicationscostcrimj
ustscotcostcrimjustdataset
29
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
number of future convictions or what sentencing decisions might be taken by courts in individual
cases
28 The table below illustrates the potential cost implications of either maintaining or
increasing the current maximum number of convictions in any individual year from four to eight
convictions For the purpose of the calculation it is assumed that the average custodial sentence
length for trafficking and exploitation offences will increase from two years and four months
(classified as a short-term sentence) to over four years (classified as a long-term sentence) as
increasing the maximum sentence to life imprisonment is anticipated to increase the average
sentence for a trafficking offence The estimated average annual cost of a prison place based on
SPS figures is pound42500 Taking account of the current early release arrangements for long-term
prisoners and the overlapping of individual sentences would result in an estimated increase of 8
to 21 total prison places each year after four years ndash ie with an additional four people receiving
custodial sentences each year and released by the Parole Board at the halfway point of their
sentence or automatically at the two-thirds point The total costs to the SPS will be within a
range of pound340000 to pound890000 These costs will fit within the overall budget costs to the SPS
As at 17 October 2014 there were 7731 people in custody in Scotland An additional 21 places
accounts for 03 of the total prison population
Table 4 Estimated range of costs to the Scottish Prison Service from increasing the
number and average length of successful prosecutions for trafficking offences
Year 1 Year 2 Year 3 Year 4
Additional Prison places 0-4 4-12 8-17 8-21
Additional Cost (pound000) pound0-pound170 pound170- pound510 pound340-pound720 pound340-pound890
Table 5 Estimated range of combined costs for trial procedures and prison places
Year 1 Year 2 Year 3 Year 4
Additional Cost (pound000) pound20-pound353 pound190- pound693 pound360-pound900 pound360-pound1073
Costs on other bodies individuals and businesses
29 There will be no new costs falling on other bodies individuals and businesses as a
consequence of these sections but see the section below with reference to victim support
Costs on local authorities
30 There will be no new costs falling on local authorities as a consequence of these specific
sections
PART 2 - PROTECTION OF VICTIMS
Duty on the Lord Advocate to publish guidance about the prosecution of credible trafficking and
exploitation victims who have committed offences
Costs on the Scottish Administration
31 As noted above the Lord Advocate already prepares and publishes guidance to fiscals
about the prosecution of credible victims of human trafficking for crimes committed as a direct
30
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
consequence of their trafficking status The requirement to publish such guidance would in
future be statutory However there will be no new costs on the Scottish Government or the
COPFS as a consequence of placing the requirement for the Lord Advocate to issue this
guidance on a statutory basis
Costs on other bodies individuals and businesses
32 There will be no new costs falling on other bodies individuals and businesses as a
consequence of these sections
Costs on local authorities
33 There will be no new costs falling on local authorities as a consequence of these sections
Ensure the rights of victims to access and support
34 The Bill will place a statutory duty on the Scottish Ministers to secure the provision of
relevant immediate support and recovery services for adult victims of trafficking subject to an
assessment of need The Bill will specify those victims or potential victims entitled to support
and the minimum time periods during which such services should be provided Specifically the
Bill will require Ministers to provide support and assistance based on each individualrsquos assessed
needs during the recovery and reflection period (currently 45 days) during which the
individualrsquos trafficking status is determined The Bill specifies minimum support and assistance
that should be considered as part of the assessment including access to housing treatment
interpretation services etc The Scottish Ministers have the flexibility to provide support and
assistance outwith the specified reflection and recovery period where this is considered
appropriate
35 As noted above the Scottish Ministers already provide grant funding totalling pound723000
to third sector organisations to assist identified adult potential victims of trafficking Provision of
support to adult victims will be placed on a statutory basis The number of adult potential victims
of trafficking referred through the NRM during 2013 was 77 although not all of these will have
requested assistance or received the full range of support services It is assumed that other
actions arising from the Bill including the single offence and publication of the trafficking and
exploitation strategy will result over time in an increase in identified victims and requests for
assistance and support
Costs on the Scottish Administration
36 The Scottish Government anticipates that improved awareness raising and training of
front-line staff will result in an increase in the number of victims identified over time It is not
possible to know how quickly this improvement will be achieved However between 2012 and
2013 the number of potential identified victims across the UK identified through the NCA
strategic assessment and NRM increased by 22 and 41 respectively Given the need for
awareness raising and training to impact the Scottish Government does not anticipate a similar
scale of increase in the immediate term but the Government considers it reasonable to anticipate
a possible increase of between 10 and 20 per annum in the overall number of requests for
assistance and support each year over the next four years Assuming a similar mix of needs as
31
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
current victims the increased costs to the Scottish Government on top of existing funding
would range between pound290000 to pound580000 per annum by year four
Table 6 Estimated range of costs increases for victim support and assistance (pound000)
Year 1 Year 2 Year 3 Year 4
Additional Cost (pound000) pound0-pound140 pound140-pound280 pound220-pound430 pound290-pound580
Costs on other bodies individuals and businesses
37 There will be no additional costs on other public bodies individuals or businesses
associated with these specific provisions There will be no direct additional costs falling on third
sector organisations as a consequence of the specific provisions It is likely however that all or
part of the additional funding identified above will be directed by the Scottish Government
through relevant third sector organisations with the expertise to provide immediate support and
protection to victims
Costs on local authorities
38 The Bill creates no new legislative requirements for the delivery of childrenrsquos services
recognising that this already exists It is therefore not anticipated that the Bill will result in any
quantifiable additional costs on local authorities or other public bodies as a result of support for
child victims Child victims of trafficking are supported as part of the Getting It Right for Every
Child (GIRFEC) approach any child whether identified as trafficked or not will be assessed on
the basis of its needs It is anticipated that as a consequence of the strategy (for which the Bill
provides) that more children may be identified as trafficked It is noted however that various
reports including most recently the UK Governmentrsquos NRM Review Report15
have found that
children who are already receiving support from relevant authorities in the UK are often not
identified as trafficked victims because of lack of awareness of the referral process It may be
that actions arising from the development of the strategy and dialogue with stakeholders will
give rise to additional activity or costs with reference to child victims of trafficking but these are
not known and cannot be estimated at this time
PART 3 - CONFISCATION OF PROPERTY
39 The Bill will provide police with powers to detain the property such as cars boats etc of
a person arrested for a trafficking offence This power will be exercised at the time of arrest and
is not expected to impose any additional costs on the police or others
Costs on the Scottish Administration
40 There will be no additional costs on the Scottish Government as a result of these
provisions Individuals can apply to the court to have vehicles ships or aircraft released from
detention This will be considered as part of the overall case and will not add to the costs to the
criminal justice system
15
httpsnrmhomeofficegovuk
32
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
Costs on other bodies individuals and businesses
41 There will be no additional costs on other public bodies individuals or businesses
including Police Scotland as a result of these specific provisions
Costs on local authorities
42 There will be no additional costs on local authorities as a result of these specific
provisions
PART 4 - TRAFFICKING AND EXPLOITATION PREVENTION AND RISK ORDERS
Introduce new measures to disrupt and prevent trafficking and exploitation
43 The Bill will introduce two new civil orders and associated interim orders to assist in
preventing trafficking and exploitation Trafficking and Exploitation Prevention Orders (TEPOs)
and Trafficking and Exploitation Risk Orders (TEROs) Where an individual has been convicted
of a trafficking or exploitation offence or an offence with a statutory trafficking aggravator a
TEPO may be imposed by a court where there is a risk that that individual may commit a further
human trafficking offence and it is necessary to make the order to protect people from the
physical or psychological harm which might occur if such an offence were committed The
TEPO will prevent the individual from engaging in activities described in the order Where a
person has not been convicted of a trafficking or exploitation offence but a court considers that
the person presents a significant risk of harm to others through the individual committing a
trafficking or exploitation offence the court can impose a TERO restricting specific activities or
imposing requirements These orders will be civil but breach of an order will constitute a
criminal offence with a maximum penalty of five years in prison available to the court
44 The Bill will categorise the trafficking and exploitation offences as lifestyle offences in
order to automatically trigger provisions within the Proceeds of Crime Act 2002 (―the 2002
Act) The definition of an offence as a ―lifestyle offence allows for proceedings under the
2002 Act to confiscate assets or monies from the individual convicted of the offence
Costs on the Scottish Administration
45 The purpose of TEPOs and TEROs is to prevent criminal activity associated with
trafficking and exploitation from arising There will be some cost implications for law
enforcement organisations which will need to monitor the terms of any order imposed by the
courts However these will be offset by the savings made from being able to intervene at an
early stage of criminality if an order has been breached For the equivalent civil orders within the
UK Modern Slavery Bill the UK Government has estimated potential net savings of between
pound130000 and pound1090000 per annum The Scottish Government has not incorporated any
savings for the purpose of Scottish legislation but expects the costs of implementing TEPOs and
TEROs and detention powers to be at least cost neutral for the Scottish Administration and other
public bodies
33
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
46 The Bill will give courts powers to impose a TEPO at the time of sentencing There will
be no immediate additional costs for the courts or COPFS associated with TEPOs imposed as
part of sentencing The Chief Constable of Police Scotland will also be able to apply to the court
for a TEPO to be imposed on a relevant offender previously convicted of a trafficking offence
There will be costs to Police Scotland in making the application and to the SCS and to SLAB in
considering the application As there have been only six previous convictions for trafficking
offences in Scotland the Scottish Government expects the number of applications for TEPOs for
previous convictions to be small one-off and will not add to the overall costs of the criminal
justice system The Chief Constable of Police Scotland can also apply to the court for a TERO
against an individual where it is considered that that individual is likely to commit a trafficking
offence
47 Looking at the equivalent costs for similar civil orders eg Sexual Offences Prevention
Orders the total costs to the SCS the COPFS and SLAB of applying for a TERO or post-
sentencing TEPO are estimated at between pound1000 and pound6000 per order It is not possible to
know how many TEPOs or TEROs might be applied for but assuming a number half the level of
the estimated maximum number of potential convictions for trafficking offences each year (four
to eight) would give estimated costs of between pound2000 (2 x pound1000) and pound24000 (4 x pound6000)
per annum
48 There will be costs to Police Scotland in monitoring TEPOs and TEROs whether
imposed at the time of sentence or by application but this will sit alongside Police Scotlandrsquos
existing crime prevention and investigative responsibilities and is not expected to add to
manpower costs
49 In addition to the costs of imposing and monitoring TEPOs and TEROs there will be
costs associated with prosecuting a breach of a TEPO or TERO Analysis in England and Wales
indicates that breaches of equivalent Serious Crime Prevention Orders are relatively low
Assuming one breach per annum the total combined costs to the COPFS the SCS and SLAB
would be between pound8400 and pound78100 per annum (see the combined costs for either sheriff
court or High Court procedures set out in Table 3 above) Assuming a maximum sentence of
five years the costs to the SPS for additional prison places would be between pound85000 and
pound127500 per annum (ie the pound42500 average costs of a prison place times either two or three
places depending on whether offenders are released early at the halfway or two-thirds point of
their sentence)
50 It is important to remember however that the purpose of TEPOs and TEROs is to
prevent further trafficking and exploitation offences occurring A TEPO or TERO will only be
imposed where a court considers that there is a credible risk of an individual committing such a
crime Any costs associated with the imposition and breach of TEPOs and TEROs needs to be
offset against the potential costs of prosecutions If each TEPO or TERO prevents the costs of a
conviction for an offence as set out in Part 1 above the costs to the Scottish Administration
would be at least cost neutral in terms of saved court and prison places expenditure
34
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
Costs on other bodies individuals and businesses
51 There will be no costs on other bodies businesses or other individuals as a consequence
of these sections
Costs on local authorities
52 There will be no new costs on local authorities as a consequence of these sections
PART 5 - STRATEGY AND REPORTING
Ensure a strategic cross-agency approach to tackling trafficking
53 The Bill places a duty on the Scottish Ministers to prepare publish and regularly review
and update a trafficking and exploitation strategy to assist in ensuring a co-ordinated and
strategic approach to this issue The provisions place a duty on Ministers to consult with such
organisations and individuals as they consider to have a relevant interest in the issues of human
trafficking and exploitation The Bill places a duty on relevant public bodies to be named in
regulations to assist in the preparation and review of the strategy
54 The Bill will place a duty on relevant public authorities to provide anonymised data about
potential human trafficking and exploitation victims to Police Scotland
Costs on the Scottish Administration
55 Activity arising from these provisions within the Bill will build on the activity and
current resources already committed to this area of work
56 Based on similar activities the estimated additional costs to the Scottish Ministers of
preparing and reviewing a trafficking and exploitation strategy will be approximately pound25000
every three years Alongside the preparation and publication of the strategy the Scottish
Ministers would also propose to support additional awareness raising and training activity to
build on the existing awareness raising and training activity already undertaken by relevant
organisations including the NHS Police Scotland and COPFS Consideration would be given to
how best to co-ordinate these resources alongside existing expenditure and activity For the
purposes of the Financial Memorandum and based on current activity additional costs on top of
existing activity are estimated at approximately pound100000 to pound250000 per annum over the first
four years of the Bill This is based on the best estimated costs of preparing and publishing
publicity and guidance material averaged over a number of years The exact costs will depend
on decisions taken in dialogue with stakeholders as part of the preparation of the strategy
57 The Scottish Government anticipates that the costs to relevant public authorities of
providing anonymised data about potential human trafficking victims to Police Scotland will be
marginal Costs to Police Scotland of collating this data will form part of their existing
intelligence gathering activity
35
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
Costs on other bodies individuals and businesses
58 There will be some costs on other bodies individuals and businesses in engaging with the
Scottish Ministers in the preparation and publication of the Strategy For business and
individuals this will be voluntary depending on their willingness to engage For public bodies
their level of engagement will depend on the relevance of the issue of trafficking and
exploitation to their work and their potential contribution to combating this behaviour Any
additional costs are expected to fit within or sit alongside their existing responsibilities for
example with reference to promoting and ensuring equalities and the application of human
rights obligations
Costs on local authorities
59 There will be costs on local authorities associated with engaging in the preparation and
review of the trafficking and exploitation strategy and in awareness raising and training of front-
line staff The additional costs should be marginal on top of the existing guidance and activity
already in place with reference to the identification and support of potential child victims of
trafficking The aim will be to minimise costs for other front-line local authority staff by
adapting the general awareness raising and training materials described above
SUMMARY
60 The table below provides a summary of the costs of each element of the Bill as described
above
Table 7 Summary table of costs for each aspect of the Bill (pound000)
Year 1 Year 2 Year 3 Year 4
Clarifying amp
Strengthening the
Criminal Law ndash Para 28 pound20-pound353 pound190- pound693 pound360-pound900 pound360-pound1073
Ensure the rights of
victims to access and
support - Para 36 pound70-pound140 pound140-pound280 pound220-pound430 pound290-pound580
Introduce new measures to
disrupt and prevent
trafficking pound016
pound0 pound0 pound0
Ensure a strategic cross
agency approach to
tackling trafficking ndash Para
56 pound125-pound275 pound100-pound250 pound100-pound250 pound125-pound275
TOTAL pound215-pound768 pound430-pound1223 pound680-pound1580 pound775-pound1928
16
The Scottish Government considers that the overall costs are at least cost neutral ndash see paragraphs 45 to 50
36
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December
SCOTTISH GOVERNMENT STATEMENT ON LEGISLATIVE
COMPETENCE
On 11 December 2014 the Cabinet Secretary for Justice (Michael Matheson MSP) made the
following statement
―In my view the provisions of the Human Trafficking and Exploitation (Scotland) Bill
would be within the legislative competence of the Scottish Parliament
mdashmdashmdashmdashmdashmdashmdashmdashmdashmdash
PRESIDING OFFICERrsquoS STATEMENT ON LEGISLATIVE
COMPETENCE
On 11 December 2014 the Presiding Officer (Rt Hon Tricia Marwick MSP) made the following
statement
―In my view the provisions of the Human Trafficking and Exploitation (Scotland) Bill
would be within the legislative competence of the Scottish Parliament
37
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December
SP Bill 57ndashEN Session 4 (2014)
HUMAN TRAFFICKING AND EXPLOITATION
(SCOTLAND) BILL
EXPLANATORY NOTES
(AND OTHER ACCOMPANYING DOCUMENTS)
Parliamentary copyright Scottish Parliamentary Corporate Body
Information on the Scottish Parliamentrsquos copyright policy can be found on the website -
wwwscottishparliamentuk
Produced and published in Scotland on behalf of the Scottish Parliamentary Corporate Body by APS
Group Scotland
ISBN 978-1-78534-569-2
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
7 Part 1 (Offences) includes provision on the creation of a single offence of human
trafficking for all types of exploitation of both adults and children establishes statutory
aggravators of human trafficking for use with other crimes and reframes the current standalone
offence of slavery servitude and forced or compulsory labour
8 Part 2 (Protection of victims) includes provision on prosecutorial guidelines for the
prosecution of victims and provision about the support and assistance to which adult victims are
entitled
9 Part 3 (Confiscation of property) includes provision on detention and forfeiture of
property and proceeds of crime
10 Part 4 (Trafficking and exploitation prevention and risk orders) includes provision on two
new preventive orders the trafficking and exploitation prevention order and the trafficking and
exploitation risk order
11 Part 5 (Strategy and reporting) includes provision on the trafficking and exploitation
strategy and the duty on specified Scottish public authorities to notify and provide information
about victims
12 Part 6 contains general and ancillary provisions
PART ONE ndash OFFENCES
Human trafficking
Section 1 Human trafficking
13 Section 1 provides for a single offence of human trafficking for the purpose of all forms
of exploitation of adults and children See paragraph 4 above for existing offence legislation
14 Subsection (1) defines the conduct which constitutes the offence of human trafficking A
person commits an offence if the person arranges or facilitates another personrsquos travel with a
view to the other person being exploited It is irrelevant whether that other person consents to
the arrangement or facilitation of travel (subsection (2)) Examples of what constitutes arranging
or facilitating another personrsquos travel for these purposes include (but are not limited to)mdash
recruiting the person with a view to transporting or transferring the person
transporting or transferring the person
transferring or exchanging control of the person
harbouring or receiving the person
15 Subsection (3) provides that the person arranges or facilitates another personrsquos travel with
a view to the other person being exploited only if the person intends to exploit the other person
or the person knows or ought to know the other person is likely to be exploited (in any part of the
world) during or after the travel
4
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
16 Subsection (5)(a) provides that on summary conviction of the offence the maximum
penalty is imprisonment for a term not exceeding 12 months a fine not exceeding the statutory
maximum or both Subsection (5)(b) provides that on conviction of the offence on indictment
the maximum penalty is imprisonment for life or a fine or both
Section 2 Application of offence to conduct in United Kingdom and elsewhere
17 Section 2 provides for the application of the human trafficking offence to conduct in the
United Kingdom and elsewhere reflecting the fact that human trafficking activity may involve
activity that is completely or partly outwith Scotland This measure implements the terms of
Article 10(2)(c) (jurisdiction) of the Directive of the European Parliament and of the Council on
preventing and combating trafficking in human beings and protecting victims replacing
Framework Decision 2002629JHA (―EU Directive)4 It should be read with the definition of
travel in section 36
18 Subsections (1) and (2) provide that a UK national a person who at the time of the
offence was habitually resident in Scotland or a body incorporated under the law of a part of the
UK commits an offence of human trafficking regardless of where the arranging or facilitating of
travel takes place or where the travel itself takes place Whether or not a person is ―habitually
resident in Scotland will be determined in the light of all the facts and circumstances of the
case
19 Subsection (3) provides that any other person commits the offence of human trafficking
only if any part of the arranging or facilitating of travel takes place in the UK or the travel
consists of arrival in or entry into departure from or travel within the UK
Section 3 Exploitation for purposes of offence of human trafficking
20 Section 3 describes what constitutes exploitation for the purposes of the offence of human
trafficking By virtue of subsection (1) only exploitation of a type mentioned in subsections (2)
to (8) is to be regarded as exploitation in this context
21 Subsection (2) provides that a person is exploited if the person is the victim of conduct
which involves the commission of an offence under section 4 of the Bill (slavery servitude and
forced or compulsory labour) or would be if the conduct occurred in Scotland
22 Subsections (3) to (5) deal with prostitution and sexual exploitation and provide that a
person is exploited ifmdash
another person exercises control direction or influence over the first personrsquos
prostitution in a way which shows that the other person is aiding abetting or
compelling the prostitution
another person involves the first person in the making or production of obscene or
indecent material or
4 httpeur-lexeuropaeuLexUriServLexUriServdouri=OJL201110100010011ENPDF
5
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
the person is the victim of conduct constituting one of a number of listed sexual
offences (or which would constitute such an offence if that conduct occurred in
Scotland)
23 The categories of exploitation related to prostitution and the making of indecent material
are drawn from the existing offence in section 22 of the 2003 Act The category related to other
forms of exploitation in connection with sexual offences is a new development in Scots law
though has some precedent under the Sexual Offences Act 2003 in England and Wales
24 Subsection (6) deals with exploitation relating to the removal of organs etc It provides
that a person is exploited in that context if they are encouraged required or expected to do
anything constituting either an offence under Part 1 of the Human Tissue (Scotland) Act 2006
which deals principally with removal of organs for transplantation or any other offence under
the law of Scotland involving removal of a part of the human body (or anything which would
constitute such an offence were it done it Scotland) This latter category ensures that the
removal of organs or tissue for purposes other than transplantation is caught by the trafficking
offences This covers the removal of body parts for research sacrificial rites consumption etc
For these purposes a part of the body comprises all parts of the body including blood
25 Subsections (7) and (8) make more general provision Subsection (7) establishes that a
person is exploited if force threats or deception are used to induce the person to provide services
or benefits or to enable another person to acquire benefits Subsection (8) provides that a person
is exploited if another person takes advantage of the personrsquos vulnerability to use or attempt to
use the person to provide services or benefits (or to enable another person to acquire benefits)
This will ensure the offence captures those cases where the role of the person being exploited is
entirely passive and where the person is being used as a tool by which others can gain a benefit
of any kind
26 The categories of exploitation in subsections (6) to (8) are derived from section 4 of the
2004 Act
Slavery servitude and forced or compulsory labour
Section 4 Slavery servitude and forced or compulsory labour
27 Section 4 provides for an offence of slavery servitude and forced or compulsory labour
Subsections (1) and (2) provide that a person is guilty of an offence if that person holds another
person in slavery or servitude or requires that other person to perform forced or compulsory
labour in circumstances which show that the first person knows or ought to know that the person
is being so held The offence must be interpreted in accordance with Article 4 of the European
Convention on Human Rights That Article prohibits a person from being held in slavery or
servitude or being required to perform forced or compulsory labour This is currently an offence
under section 47 of the 2010 Act which was created in response to the case of Siliadin v France5
(where the European Court of Human Rights held that there had been a violation of Article 4 in
relation to the holding of an individual in domestic servitude)
5 Application no 7331601 httphudocechrcoeintsitesengpagessearchaspxi=001-69891
6
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
28 Subsection (3) provides that in assessing whether a person has been the victim of the
offence the court is to have regard to any of the alleged victimrsquos characteristics that make the
person more vulnerable than other people Examples of these characteristics include age health
or family relationships
29 Subsection (4) sets out the maximum penalty available on conviction of the offence of
slavery servitude and forced or compulsory labour This is an increase from the current
maximum penalty for the offence under section 47 of the 2010 Act Subsection (4)(a) provides
that on summary conviction of the offence the maximum penalty is imprisonment for a term not
exceeding 12 months a fine not exceeding the statutory maximum or both Subsection (4)(b)
provides that on conviction of the offence on indictment the maximum penalty is imprisonment
for life a fine or both
Aggravation as to human trafficking
Section 5 General aggravation of offence
30 Section 5 makes provision for a statutory aggravation which applies in cases where an
accused commits any other offence and that offence has a connection with a human trafficking
offence Where an indictment or complaint libels or specifies that an offence is aggravated by a
connection with human trafficking activity and it is subsequently proved that the offence is
aggravated in that way the court must state on conviction that the offence is so aggravated
record the conviction in a way which shows that the offence is so aggravated take the
aggravation into account when determining the appropriate sentence and state the extent of any
difference in the sentence in light of the aggravation (or if there is no difference the reasons for
that) (subsections (1) and (5))
31 Subsection (2) sets out the circumstances in which an offence can be regarded to have
been aggravated by a connection with human trafficking This relies on proof that the accused
was motivated in whole or in part by the objective of committing or conspiring to commit the
offence of human trafficking In terms of subsection (3) it is not material to establishing the
aggravation whether or not the offence of human trafficking was actually committed by the
offender or another person
32 Subsection (4) provides clarification that corroboration is not needed to prove that an
offence is aggravated by a connection with human trafficking activity ndash evidence from a single
source is sufficient This is consistent with the existing law in relation to both corroboration and
statutory aggravations This position is under review pending further parliamentary scrutiny of
the Criminal Justice (Scotland) Bill
Section 6 Aggravation involving public official
33 Section 6 makes similar provision about a statutory aggravation which applies in cases
where a public official acting or purporting to act in the course of official duties commits the
offence of human trafficking
34 Subsection (4) sets out the steps the court must take when it is libelled in an indictment or
specified in a complaint that the offence of human trafficking is aggravated by an abuse of a
7
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
public position and proved that the offence is so aggravated These are similar to the steps which
must be taken in relation to the general aggravation in section 5
35 Subsection (5) defines those to be considered as a public official for the purposes of
section 6 while subsection (6) defines the term ―an international organisation for the purposes
of this section
36 Subsection (7) enables the Scottish Ministers to modify by regulations the definition of
who is a public official and the definition of an international organisation Any such regulations
will be subject to the affirmative procedure
PART 2 ndash PROTECTION OF VICTIMS
Prosecution of victims
Section 7 Lord Advocatersquos guidelines on prosecution of victims of offences
37 Section 7 places a duty on the Lord Advocate to prepare and publish guidelines for
prosecutors about the prosecution of suspected or confirmed victims of the offence of human
trafficking and the offence under section 4 of the Bill
38 Subsection (2) sets out that the guidelines must include factors to be taken into account or
steps to be taken when deciding whether to prosecute a person who does an act which constitutes
an offence having been compelled to do so and that the compulsion is directly attributable to the
person being or appearing to be a victim of an offence of human trafficking or as the case may
be under section 4 of the Bill
39 Subsection (3) provides that the Lord Advocate may from time to time revise the
guidelines
Support and assistance for adult victims of human trafficking
Section 8 Duty to secure support and assistance
40 Article 12 of the Council of Europe Convention on Action against Trafficking in Human
Beings6 (―COE Convention) sets out the support and assistance which must be provided for
trafficked victims The UK Government ratified the COE Convention in December 2008 and
Scotland became bound by its terms in April 2009 Currently there is no statutory basis for
potential victims of trafficking to access support and information on the type of support that they
are entitled to Support is currently provided through support agencies with grant funding from
the Scottish Ministers
41 Section 8 places a duty on the Scottish Ministers to secure the provision of support and
assistance for adult victims of human trafficking on an assessment of needs during a defined
period It also sets out a discretionary power for the Scottish Ministers to arrange the provision
of support and assistance outwith the mandatory period
6 httpconventionscoeintTreatyenTreatiesHtml197htm
8
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
42 Subsection (1) provides that where there are reasonable grounds to believe that an adult is
a victim of human trafficking the Scottish Ministers must secure the provision of such support
and assistance as is necessary given the adultrsquos needs for the relevant period
43 Subsection (2) defines the relevant period It begins on the day it is determined there are
reasonable grounds to believe that the adult is a victim of human trafficking (paragraph (a)) and
ends on the earlier of either the end of a period specified in regulations made by the Scottish
Ministers (paragraph (b)(i)) or the date on which there is a conclusive determination that the
adult is or is not a victim of a human trafficking offence (paragraph (b)(ii))
44 Subsection (3) gives the Scottish Ministers discretion to provide support and assistance
outwith the mandatory period under subsection (2) The support and assistance may be provided
to the adult during the period when a competent authority is determining whether there are
reasonable grounds to believe that the person is a victim of human trafficking (paragraph (a)) It
may also be provided before the date on which there is a conclusive determination in relation to
the adult if the mandatory period has ended by then (paragraph (b)) or after that conclusive
determination for such period as Ministers think appropriate (paragraph (c))
45 Subsection (4) provides a non-exhaustive list of the kind of support and assistance that
may be provided under section 8 The list provides that support and assistance may be provided
in connection with (but not limited to) the followingmdash
accommodation
day to day living
medical advice and treatment
language translation and interpretation
counselling
legal advice
information about other services available to the adult and
repatriation
46 Subsection (5) provides that the Scottish Ministers must ensure that in securing the
provision of support and assistance assistance is only provided where the adult consents
(subsection (5)(a)) and that the provision of assistance is not made conditional on the adult
assisting with a criminal prosecution or investigation (subsection (5)(b))
47 Subsection (6)(a) describes when there are reasonable grounds to believe that an adult is a
victim of a trafficking offence for the purposes of securing support and assistance Subsection
(6)(b) describes what is meant by a ―conclusive determination that an adult is or is not a victim
of an offence of human trafficking for these purposes
48 Subsection (7) defines what is meant by the terms ―competent authority and ―the
Trafficking Convention for the purposes of this section
9
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
PART 3 - CONFISCATION OF PROPERTY
Detention and forfeiture
Section 9 Detention of vehicle ship or aircraft
49 Section 9 sets out the power of a constable to detain a vehicle ship or aircraft if a person
has been arrested for an offence of human trafficking
50 Subsection (1) describes the circumstances where a police constable may detain a vehicle
ship or aircraft Subsection (1)(a) provides that a constable may detain a vehicle ship or aircraft
if a person has been arrested for an offence of human trafficking and the constable has
reasonable grounds to believe that a forfeiture order would be made if the person arrested were
convicted of the offence (subsection (1)(b))
51 Subsection (2) provides for the duration of the detention of the property Subsection
(2)(a) provides that the vehicle ship or aircraft may be detained until a decision is taken as to
whether or not to begin solemn proceedings against the person arrested for the offence In
circumstances where solemn proceedings have begun the property may be detained until the
person is acquitted (subsection (2)(b)(i)) the person is convicted and a decision is made whether
or not to order forfeiture of the property under section 10 (subsection (2)(b)(ii)) or the
proceedings are otherwise concluded (subsection (2)(b)(iii))
52 Subsections (3) and (4) set out the circumstances in which solemn proceedings are to be
taken to have commenced and concluded for the purposes of this section
53 Subsection (5) lists the circumstances in which a person (including the accused) with a
relevant interest in the detained property may apply to the sheriff for release of the vehicle ship
or aircraft Subsection (6) sets out the sheriffrsquos power to order release subject to satisfactory
security being tendered
54 Subsection (7) provides that the sheriff may impose such other conditions as to the
release of the detained property as the sheriff thinks fit
Section 10 Forfeiture of vehicle ship or aircraft
55 Section 10 sets out the power of the court to order forfeiture of a vehicle ship or aircraft
used or intended to be used in connection with an offence of human trafficking
56 Subsections (1) to (3) provides that forfeiture of a vehicle ship or aircraft used or
intended to be used in connection with the offence of human trafficking may be ordered if a
person convicted on indictment of that offence when the offence was committedmdash
owned the vehicle ship or aircraft
was a director secretary or manager of a company which owned it
was in possession of it under a hire purchase agreement
10
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
was a director secretary or manager of a company which was in possession of it
under a hire purchase agreement
in relation to a vehicle was driving it
in relation to a ship or aircraft was the charterer of it or was acting as captain of it
57 Subsection (4) makes special provision about cases where a ship or aircraft is to be
forfeited but the offender does not own it and was not a director secretary or manager of a
company which owns it It provides that in those circumstances forfeiture of a ship or aircraft
may only be ordered if any one of the tests listed in this subsection is satisfied Subsection (4)(a)
provides that if a person who at the time the offence was committed owned the ship or aircraft
or was a director secretary or manager of a company which owned it knew or ought to have
known of the intention to use it in the course of the commission of the offence of human
trafficking then forfeiture of a ship or aircraft may be ordered Subsection (4)(b) provides that
in the case of a ship (other than a hovercraft) if its gross tonnage is less than 500 then forfeiture
of that ship may be ordered Subsection (4)(c) provides that in the case of an aircraft if the
maximum weight at which it may take off in accordance with its certificate of airworthiness is
less than 5700 kilogrammes then forfeiture of that aircraft may be ordered under this section
Protection is provided for particular categories of owner who due to the size of the ship or
aircraft in question or the circumstances in which it is used for trafficking do not know or
reasonably suspect or are unlikely to know or reasonably suspect that the ship or aircraft is
being used in that way There is a greater likelihood that an owner of a vehicle or smaller types
of ships or aircraft will have actual or constructive knowledge that their property is being or
intended to be used for the purposes of trafficking
58 Subsection (5) provides that forfeiture cannot be ordered without giving any person
claiming an interest in the relevant property the chance to make representations
Proceeds of crime
Section 11 Proceeds of Crime Act 2002 lifestyle offences
59 Section 11 amends Schedule 4 to the Proceeds of Crime Act 2002 (―2002 Act) to
categorise all trafficking and exploitation offences as lifestyle offences for the purposes of that
Act A conviction of a lifestyle offence triggers assumptions under the 2002 Act that the accused
has a criminal lifestyle and that the accusedrsquos property is recoverable as criminal proceeds
60 Section 11(a) amends Schedule 4 to the 2002 Act by substituting paragraph 4 thereof
with a list of all offences related to trafficking and thus categorising all such offences as lifestyle
offences for the purposes of the 2002 Act Section 11(b) amends the same Schedule by inserting
a new paragraph 4A to provide that an offence under section 4 of the Bill also constitutes a
lifestyle offence
11
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
PART 4 ndash TRAFFICKING AND EXPLOITATION PREVENTION AND RISK ORDERS
Trafficking and exploitation offences
Section 12 Relevant trafficking or exploitation offences
61 Section 12 provides a list of the relevant trafficking and exploitation offences for the
purposes of trafficking and exploitation prevention and risk orders made under the Act The list
includes repealed provisions as orders (other than orders on sentencing) may still be made with
reference to convictions under such provisions
62 Subsection (2) provides that the Scottish Ministers may modify by regulations the
offences contained in the list Under section 37(2) any such regulations are subject to the
affirmative procedure
Trafficking and exploitation prevention orders
Section 13 Prevention orders on sentencing
63 Section 13 provides that a court may instead of or in addition to dealing with the person
in any other way make a trafficking and exploitation prevention order (TEPO) on sentencing of
an adult
64 Subsection (1) sets out the three circumstances where the court may make a TEPO
against a person on sentencing The first is conviction of an adult of a relevant trafficking and
exploitation offence The second circumstance is acquittal of such an offence by reason of the
special defence set out in section 51A of the Criminal Procedure (Scotland) Act 1995 (which
provides a defence where a person is unable by reason of mental disorder to appreciate the nature
or wrongfulness of their conduct) The third circumstance is a finding of unfitness for trial in
relation to such an offence under section 53F of that Act (which provides that a person is unfit
for trial if it is established on the balance of probabilities that the person is incapable by reason
of a mental or physical condition of participating effectively in that trial) In relation to the third
circumstance there must also be a finding that the adult has done the act constituting the offence
65 Subsection (3) provides that the court may make a TEPO at its own instance or on the
motion of the prosecutor
66 Subsection (4) provides the test for making a TEPO on sentencing The court must be
satisfied that there is a risk that the person in respect of whom the order is to have effect may
commit another offence mentioned in section 12 and that it is necessary to make the prohibitions
and requirements in the order for the purpose of protecting persons generally or particular
persons from the physical or psychological harm which would be likely to occur if the person
committed such an offence
67 Subsection (5) provides a definition of ―the court for the purposes of this section
12
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
Section 14 Prevention orders on application
68 Section 14 provides that the chief constable may apply to a sheriff for a TEPO against an
adult
69 Subsection (2) sets out the appropriate sheriff to whom such an application should be
made
70 Subsection (3) sets out the tests for making a TEPO on application The sheriff must be
satisfied that the person in respect of whom the order is sought is a ―relevant offender
(subsection (3)(a)) that since the person first became a relevant offender the person has acted in
a way which means that there is a risk the person will commit a relevant trafficking or
exploitation offence (subsection (3)(b)) and it is necessary to make the prohibitions or
requirements in the order for the purpose of protecting persons generally or particular persons
from the physical or psychological harm which would be likely to occur if the person committed
such an offence (subsection (3)(c))
71 Subsection (4) provides that conduct which occurred before this section came into force
may be considered when determining whether there is a risk that a person may commit a relevant
trafficking offence
Section 15 Meaning of relevant offender
72 Section 15 defines what is meant by a ―relevant offender for the purposes of section 14
73 Subsection (2) provides that a person is a relevant offender if any of the court disposals
listed in the subsection have been made in the UK in relation to that person and in respect of a
relevant trafficking or exploitation offence (as set out in section 12 of the Bill)
74 Subsections (3) to (5) deal with findings of courts and tribunals outside the United
Kingdom Subsection (3) provides that a person is a relevant offender if under the law of a
country outside the United Kingdom a listed disposal is made in respect of a person in relation
to an offence which is equivalent to an offence listed in section 12 Subsections (4) and (5) set
out tests for determining whether an offence is equivalent to a relevant offence In particular
such offences are acts which constitute offences under the law of the country concerned and
which would constitute a relevant trafficking or exploitation offence under the law of Scotland if
done in the UK by a UK national or person habitually resident in Scotland or as regards the UK
(eg by virtue of the fact that travel was arranged into out of or within the UK)
75 Subsection (6) establishes a mechanism for determining whether an act constituting an
offence in a country outside the UK would constitute an offence under the law of Scotland
76 Subsection (8) provides that for the purposes of this section convictions acquittals
findings and cautions include those which took place before this section comes into force
13
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
Section 16 Contents of prevention orders
77 Section 16 makes provision about the prohibitions or requirements (or both) that may be
contained in a TEPO Each prohibition and requirement in a TEPO is for a fixed period and the
order itself is for a fixed period The order and the prohibitions and requirements may all be for
the same period However the Bill allows some requirements and prohibitions in the order to be
set for a period shorter than that of the order if that is appropriate
78 Subsection (2) provides that both the order and any prohibition or requirement in the
order must have a specified fixed period of at least five years The only exception to that
requirement relates to a prohibition on foreign travel and an order containing only a prohibition
on foreign travel (which is dealt with in section 17) and relates to a period of not more than five
years Subsection (4) provides that a TEPO may prohibit the person in respect of whom the
order is made from doing things or require that person to do things Different prohibitions and
requirements may have effect for different periods
79 Subsection (5) provides that if the court makes a TEPO in respect of a person already
subject to such an order the earlier order will cease to have effect
80 Subsection (6) defines what is meant by ―the court for the purposes of the section
Section 17 Prohibitions on foreign travel
81 Section 17 makes provision about prohibitions on foreign travel in TEPOs
82 Subsection (1) provides that a prohibition on foreign travel contained in a TEPO and
any TEPO which contains such a prohibition and no other prohibitions or requirements must be
for a fixed period of not more than five years
83 Subsection (2) defines a prohibition on foreign travel as a prohibition on travelling to
countries outside the UK (either by reference to particular countries or generally)
84 Subsection (3)(a) determines that a prohibition on foreign travel varied or renewed by
application under section 18 or 19 may be varied or renewed for further fixed periods of no more
than five years each time Subsection (3)(b) requires that an order containing only a foreign
travel restriction may be renewed for up to that fixed period
85 Subsection (4) sets out the requirement on a person in respect of whom a TEPO
containing a prohibition on foreign travel to all countries outwith the United Kingdom has been
made to surrender at a police station each passport that the person has
86 Subsection (5) provides that any passport surrendered must be returned as soon as is
reasonably practicable after the person ceases to be subject to such a prohibition on foreign
travel Circumstances where this subsection would not apply are provided for at subsection (6)
for example where a passport has already been returned to the relevant authority
14
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
Section 18 Orders on sentencing variation renewal and discharge
87 Section 18 makes provision about varying renewing and discharging TEPOs made on
sentencing
88 Subsections (2) to (4) set out general powers in this context The person in respect of
whom the TEPO is made or the prosecutor may apply for variation renewal or discharge of such
a TEPO That application is to be made to the High Court where that court made the order and
to the sheriff otherwise Subsection (4)(b) makes provision about shrieval jurisdiction in this
connection Where the relevant court receives such an application it may vary renew or
discharge individual prohibitions or requirements or add new prohibitions or requirements it
may renew the whole order or it may discharge the whole order
89 Subsection (5) provides that the court must before making an order under this section
give an opportunity to make representations to the person in respect of whom the order is made
the prosecutor and the chief constable Subsection (6) provides that after taking into account
any such representations the court may then make such order as it thinks appropriate
90 Subsection (7) sets out the tests the court must consider when deciding whether to vary
renew or discharge TEPOs made on sentencing (including by adding new prohibitions or
requirements) or any prohibitions or requirements within them Subsection (7)(a) applies the
tests for the making of a TEPO to any variation (including an increase or a relaxation of a
requirement or prohibition) renewal or addition Subsection (7)(b) applies those tests to any
discharge of a prohibition or requirement or of an order
91 Subsection (8) makes it clear that an order varying or renewing a TEPO is subject to the
requirements and prohibitions established by sections 16 and 17 in the same way as the original
order
92 Subsection (9) defines ―prosecutor for the purposes of this section
Section 19 Orders on application variation renewal and discharge
93 Section 19 makes provision about the variation renewal or discharge of TEPOs made on
application
94 Subsections (2) to (4) set out general powers in this context The person in respect of
whom the TEPO is made or the chief constable may apply to the sheriff for variation renewal or
discharge of a TEPO made on application Subsection (4)(b) makes provision about shrieval
jurisdiction in this connection Where the sheriff receives such an application the sheriff may
vary renew or discharge individual prohibitions or requirements or add new prohibitions or
requirements renew the order so that the period of the order itself is extended or discharge the
whole order
95 Subsection (5) provides that the sheriff must before making an order under this section
give an opportunity to make representations to the person in respect of whom the order is made
15
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
and the chief constable Subsection (6) provides that after taking into account any such
representations the sheriff may then make such an order as the sheriff thinks appropriate
96 Subsection (7) sets out the tests the sheriff must consider when deciding whether to vary
renew or discharge TEPOs on application (including by adding new prohibitions or
requirements) or any prohibitions or requirements within them Those tests reflect the tests for
the making of a TEPO
97 Subsection (8) provides that when determining an application under this section the
sheriff may consider conduct which occurred before this section comes into force
98 Subsection (9) makes it clear that an order varying or renewing a TEPO is subject to the
requirements and prohibitions established by sections 16 and 17 in the same way as the original
order
Section 20 Interim prevention orders
99 Section 20 gives power to a sheriff to make an interim TEPO while the main application
under section 14 is being determined The sheriff may make such an order if the sheriff
considers it just to do so (subsection (1)) and such an order may contain prohibitions or
requirements (or both) in relation to the person in respect of whom the order is to have effect
(subsection (2)) Those prohibitions or requirements may relate to things to be done or not done
in any part of Scotland or anywhere outwith Scotland (subsection (3))
100 Subsection (4) provides that an interim TEPO will only have effect for a fixed period
specified in the order and will cease to have effect on the determination of an application for a
TEPO under section 14 if that fixed period has not expired
101 Subsection (5) allows for an application to a sheriff in the sheriffdom of the sheriff who
made the interim TEPO for variation or discharge of that order Such an application may be
made by the person in respect of whom the order was made or the chief constable
Section 21 Appeals prevention orders
102 Section 21 provides for an appeals process in relation to TEPOs and interim TEPOs
103 Subsection (1) makes provision about TEPOs made on sentencing and any variation or
renewal of such a TEPO These are to be treated as sentences for the purposes of any appeal
104 Subsections (2) (3) and (4) make provision about appeals in relation to TEPOs made on
application any variation or renewal of such a TEPO and interim TEPOs The person in respect
of whom the order was made or the chief constable may appeal against any of these orders
16
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
Trafficking and exploitation risk orders
Section 22 Risk orders
105 Section 22 provides that the chief constable may apply to a sheriff for a trafficking and
exploitation risk order (TERO) against an adult A TERO differs from a TEPO in that it may be
made where a person has not previously been convicted of a trafficking or exploitation offence
but the personrsquos behaviour indicates a risk that others may be at harm as a result of that person
committing such an offence and intervention at an early stage is necessary to prevent that harm
A TEPO can only be made where a relevant offence has already been committed
106 Subsection (2) sets out the appropriate sheriff to whom an application for such an order
may be made
107 Subsection (3) sets out the tests for making a TERO The sheriff may only make an order
if satisfied that the person in respect of whom the order is sought has acted in a way which
means that there is a risk the person may commit a relevant trafficking or exploitation offence
(subsection (3)(a)) and it is necessary to make the prohibitions or requirements in the order for
the purpose of protecting persons generally or particular persons from the physical or
psychological harm which would be likely to occur if the person committed such an offence
(subsection (3)(b))
108 Subsection (4) provides that in assessing those tests the sheriff may consider conduct
which occurred before this section comes into force
Section 23 Contents of risk orders
109 Section 23 makes provision about the prohibitions or requirements (or both) that may be
contained in a TERO Each prohibition and requirement in a TERO is for a fixed period and the
order itself is for a fixed period The orders and the prohibitions or requirements may all be for
the same period However the Bill allows some requirements and prohibitions in the order to be
set for a shorter period if that is appropriate
110 Subsection (2) provides that both the order and any prohibition or requirement in the
order must have a specified fixed period of at least two years However this does not apply to a
prohibition on foreign travel or to an order that contains a prohibition on foreign travel and no
other prohibitions or requirements Such a prohibition (or an order containing only such a
prohibition) must be for a fixed period of no more than five years under section 24(1))
111 Subsection (4) provides that a TERO may prohibit the person in respect of whom the
order is made from doing things or require that person to do things Different prohibitions and
requirements may have effect for different periods
112 Subsection (5) provides that if the sheriff makes a TERO in relation to a person already
subject to such an order the earlier order will cease to have effect
17
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
Section 24 Prohibitions on foreign travel
113 Section 24 makes provision about prohibitions on foreign travel contained in a TERO
114 As noted above subsection (1) provides that a prohibition on foreign travel contained in a
TERO and any TERO which contains such a prohibition and no other prohibitions or
requirements must be for a fixed period of not more than five years
115 Subsection (2) defines a ―prohibition on foreign travel as a prohibition on travelling to
countries outwith the UK (either by reference to particular countries or generally)
116 Subsection (3)(a) determines that a prohibition on foreign travel varied or renewed under
section 25 may be varied or renewed for further fixed periods of no more than five years each
time Subsection (3)(b) requires that an order containing only a foreign travel restriction may be
renewed for up to that fixed period
117 Subsection (4) sets out the requirement on a person in respect of whom a TERO has been
made containing a prohibition on foreign travel to all countries outwith the United Kingdom to
surrender at a police station each passport that the person has Subsection (5) provides that any
passport surrendered must be returned as soon as is reasonably practicable after the person
ceases to be subject to a prohibition on foreign travel to all countries outwith the United
Kingdom Circumstances where this subsection would not apply are provided for at subsection
(6) for example where a passport has already been returned to the relevant authority
Section 25 Variation renewal and discharge of risk orders
118 Section 25 makes provision about the variation renewal or discharge of TEROs
119 Subsections (1) to (3) set out general powers in this context The person in respect of
whom the TERO is made or the chief constable may apply to the sheriff for variation renewal or
discharge of a TERO Subsection (3) makes provision about shrieval jurisdiction in this
connection Where the sheriff receives such an application the sheriff may vary renew or
discharge individual prohibitions or requirements or add new prohibitions or requirements
renew the whole order or discharge the whole order
120 Subsection (4) provides that the sheriff must before making an order under this section
give an opportunity to make representations to the person in respect of whom the order is made
and the chief constable Subsection (5) provides that after taking into account any such
representations the sheriff may then make any order the sheriff considers appropriate
121 Subsection (6) sets out the tests the sheriff must consider when deciding whether to vary
renew or discharge TEROs (including by adding new prohibitions or requirements) or any
prohibitions or requirements within them Subsection (6)(a) applies the tests for the making of a
TERO to any variation (including an increase or a relaxation of a requirement or prohibition)
renewal or addition Subsection (6)(b) applies those tests to any discharge of a prohibition or
requirement or of an order
18
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
Section 26 Interim risk orders
122 Section 26 provides that a sheriff may make an interim TERO while the main application
under section 22 is being determined The sheriff may make such an order if the sheriff
considers it just to do so (subsection (1)) and such an order may contain prohibitions or
requirements (or both) in relation to the person in respect of whom the order is to have effect
(subsection (2)) Those prohibitions or requirements may relate to things to be done or not done
in any part of Scotland or anywhere outwith Scotland (subsection (3))
123 Subsection (4) provides that an interim TERO will only have effect for a fixed period
specified in the order and will cease to have effect on the determination of the main application
if that fixed period has not already expired
124 Subsection (5) allows for an application for variation or discharge of an interim TERO
(or a requirement or prohibition in the order) to be made to a sheriff in the sheriffdom of the
sheriff who made the interim order by the person in respect of whom the order was made or the
chief constable (subsection (6))
Section 27 Appeals risk orders
125 Section 27 provides for an appeals process in relation to TEROs and interim TEROs and
any order varying or renewing such a TERO or interim TERO The person in respect of whom
the order was made or the chief constable may appeal against any of these orders
Offences and supplementary provision
Section 28 Offences
126 Section 28 makes provision about breach of TEPOs and TEROs
127 Subsections (1) and (2) provide that a person commits an offence if that person does
anything which the person is prohibited from doing by an order or fails to do anything which the
person is required to do by a TEPO or a TERO or an interim TEPO or TERO
128 Subsection (3) makes provision about penalties in relation to these offences A person
who commits an offence under this section is liable on summary conviction to imprisonment for
a term not exceeding 12 months or a fine not exceeding the statutory minimum (or both) On
conviction on indictment that person is liable to imprisonment for a term not exceeding five
years or a fine (or both)
Section 29 Enforcement of other UK orders
129 Section 29 provides that the Scottish Ministers may modify by regulations the list of
orders at section 28(2) so that a breach of those orders in Scotland constitutes an offence under
section 28(1) The orders which may be added are ―relevant UK orders Those are described in
subsection (2) as orders under the law of England and Wales or Northern Ireland which appear to
the Scottish Ministers to be equivalent or similar to TEPOs TEROs or interim TEPOs or
TEROs
19
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
Section 30 Interpretation of Part 4
130 Section 30 defines certain terms used in Part 4
PART 5 - STRATEGY AND REPORTING
Section 31 Trafficking and exploitation strategy
131 Section 31 places a duty on the Scottish Ministers to prepare a trafficking and
exploitation strategy The strategy under this section is a strategy which sets out such actions
arrangements and outcomes as the Scottish Ministers consider appropriate in relation to the
conduct which constitutes an offence under this Act
132 Subsection (3) lists some of the matters which may be set out in the strategy though that
list is not exhaustive Those matters include for example training and awareness raising in
relation to the detection and prevention of the conduct which constitutes an offence of human
trafficking or an offence under section 4
Section 32 Review and publication of strategy
133 Subsection (1) of section 32 provides that the strategy prepared under section 31 must be
reviewed by the Scottish Ministers every three years Following a review the Scottish Ministers
are required by subsection (2) to prepare a report on the review including an assessment of the
extent to which the strategy has been complied with and may prepare a revised strategy If a
decision is taken following such a review not to prepare a revised strategy the Scottish Ministers
must set out their reasons for that decision
134 Subsection (4) places a duty on the Scottish Ministers to consult with those likely to have
an interest in the strategy before preparing or reviewing the strategy Those likely to have an
interest include but are not limited to businesses support agencies faith based groups etc
135 Subsection (5) requires the Scottish Ministers to publish and lay before the Scottish
Parliament each strategy and report prepared under this section
Section 33 Duty to co-operate on strategy
136 Section 33 provides that Scottish public authorities as specified in regulations that may
be made by the Scottish Ministers must provide such information and assistance as the Scottish
Ministers may reasonably require and otherwise co-operate with the Scottish Ministers in the
preparation or review of the strategy A specified public authority could include for example
Police Scotland and local authorities
Section 34 Duty to notify and provide information about victims
137 Section 34 places a duty on specified Scottish public authorities to notify the chief
constable of the Police Service of Scotland about a person who is or appears to be a victim of
20
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
an offence under section 1 or section 4 This duty would not affect any other general right to
report information relating to crime
138 Subsection (2) requires that a notification relating to an adult is anonymised and does not
include any information that identifies the adult or enables the adult to be identified unless the
adult consents to that data being provided
139 Subsection (3) provides that the Scottish Ministers may by regulations specify the
Scottish public authorities who are to be subject to this duty and may make provision about the
information to be included in the notification The regulations will be subject to the negative
procedure
PART 6 ndash FINAL PROVISIONS
Section 35 Offences by bodies corporate etc
140 Section 35 provides that where an offence under the Bill was committed by a body
corporate or a Scottish partnership or other unincorporated association and it is proved that the
offence was committed with the consent or connivance of or was attributable to any neglect on
the part of a relevant individual or someone purporting to be acting in the capacity of a relevant
individual that individual as well as the body corporate partnership or unincorporated
association commits the offence and is liable to be proceeded against and punished accordingly
141 Subsection (2) defines what is meant by a ―relevant individual for the purpose of this
section
Section 36 Interpretation
142 Section 36 defines certain terms for the purposes of the Bill for example the definition
of ―travel
Section 37 Regulations
143 The Scottish Ministers are given various powers under this Bill to make regulations
Section 37 provides for the parliamentary procedure which is to be applicable in relation to each
of those powers
Section 38 Ancillary provision
144 Section 38 provides that the Scottish Ministers may make regulations containing such
incidental supplementary consequential transitional transitory or saving provision as they
consider necessary or expedient for the purposes of or in connection with the provisions of the
Bill
21
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
Section 39 Minor and consequential amendments
145 Section 39 introduces the schedule which makes minor amendments and amendments
consequential on the provisions of the Bill Given their replacement in Part 1 of the Bill the
schedule repeals the current offences in relation to human trafficking (section 22 of the 2003 Act
and section 4 of the 2004 Act) and slavery servitude and forced or compulsory labour (section
47 of the 2010 Act)
Section 40 Crown application
146 Section 40(1) provides that none of the provisions made by or under the Act are capable
of making the Crown criminally liable In accordance with subsection (2) enforcement of
offences against the Crown is to be done by the Scottish Ministers or any other public body or
office-holder with responsibility for enforcing the provision applying to the Court of Session for
a civil declarator of non-compliance This provision does not apply to persons in the public
service of the Crown
Section 41 Commencement
147 Section 41 provides that sections 36 37 38 40 41 and 42 of the Bill come into force on
the day after Royal Assent All other provisions are to come into force on a day appointed by
regulations made by the Scottish Ministers
22
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
FINANCIAL MEMORANDUM
INTRODUCTION
1 This document relates to the Human Trafficking and Exploitation (Scotland) Bill (―the
Bill) introduced in the Scottish Parliament on 11 December 2014 It has been prepared by the
Scottish Government to satisfy Rule 932 of the Parliamentrsquos Standing Orders It does not form
part of the Bill and has not been endorsed by the Parliament
2 The purpose of the Bill is to consolidate and strengthen the existing criminal law against
human trafficking and exploitation and enhance the status and support provided to victims Bill
provisions are in the following Partsmdash
Part 1 (Offences) includes provision on the creation of a single offence of human trafficking
for all types of exploitation of both adults and children establishes statutory aggravators of
human trafficking for use with other crimes and reframes the current standalone offence of
slavery servitude and forced or compulsory labour
Part 2 (Protection of victims) includes provision on prosecutorial guidelines for the
prosecution of victims and provision about the support and assistance to which adult victims
are entitled
Part 3 (Confiscation of property) includes provision on detention and forfeiture of property
and proceeds of crime
Part 4 (Trafficking and exploitation prevention and risk orders) includes provision on
two new preventive orders the trafficking and exploitation prevention order and the
trafficking and exploitation risk order
Part 5 (Strategy and reporting) includes provision on the trafficking and exploitation
strategy and the duty on specified Scottish public authorities to notify and provide
information about victims
Part 6 contains general and ancillary provisions
3 This Financial Memorandum considers the financial implications of each of the elements
of the Bill where relevant
BACKGROUND
4 Before considering the financial implications associated with the specific provisions
within the Bill it is important to consider both the current estimated extent of human trafficking
in Scotland and existing activity by public bodies and others in response to this issue
23
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
Extent of human trafficking in Scotland
5 Human trafficking is by its nature a hidden crime The National Referral Mechanism
(NRM) is the process set up by the UK Government to identify and support victims of trafficking
in the UK The NRM is also the mechanism by which the UK Human Trafficking Centre
collects data about potential victims of trafficking Information about suspected child and adult
victims of human trafficking is referred by relevant ―first responder organisations such as the
police and third sector bodies for example Migrant Help and the Trafficking Awareness Raising
Alliance (TARA) Referrals relate to victims trafficked from outside and within the UK The
table below summarises the most recent available information on NRM referrals from first
responder organisations in Scotland
Table 1 Recent referrals from first responders in Scotland of potential child and adult
human trafficking victims to the National Referral Mechanism
2012 2013
Adults 67 77
Children 29 22
Total 96 99
of all UK Referrals 8 6
Source National Crime Agency National Referral Mechanism Statistics 2012 and 20131
6 Various reports confirm that the number of victims referred through the NRM is likely to
be a significant underestimate of the actual number of potential victims of trafficking For
example the Equality and Human Rights Commission Inquiry into Human Trafficking in
Scotland (2011) noted ―estimates of identified potential victims do not reflect what is likely to be
a much greater number of unidentified victims2
7 The UK National Crime Agency (NCA) Strategic Assessment of the Nature and Scale of
Human Trafficking in the UK3 aims to provide an indication of the nature and scale of human
trafficking beyond the number of referrals to the NRM The assessment is produced using
intelligence held by the NCA the NRM and intelligence information collected from agencies
such as Police Scotland the Home Office Gangmastersrsquo Licensing Authority and non-
government organisations The assessment removes information of potential victims referred to
the NRM who have received a negative ―reasonable grounds or ―conclusive decision (ie it
has been confirmed that they are not victims of trafficking) or duplicate information about
individuals (ie the same person has been referred more than once or by more than one agency)
to show a total number of ―unique potential victims of trafficking The NCA Assessment for
2013 indicated that there were significantly more unique potential victims of human trafficking
identified across the UK than the numbers referred to the NRM even excluding those that
received a negative decision and that the number of unique victims was increasing
1 httpwwwnationalcrimeagencygovukpublications399-nca-strategic-assessment-the-nature-and-scale-of-
human-trafficking-in-2013file 2httpwwwequalityhumanrightscomsitesdefaultfilesdocumentsScotlandHuman_Trafficking_in_Scotland_inq
uiry_into_human_trafficking_in_scotland-full-report_pdf_pdf 3 httpwwwnationalcrimeagencygovukpublications399-nca-strategic-assessment-the-nature-and-scale-of-
human-trafficking-in-2013file
24
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
Table 2 Comparison of recent UK referrals to the National Referral Mechanism and the
National Crime Agency Strategic Assessment of the Scale of Human Trafficking
2012 2013 Change
Referred to NRM 778 1095 +41
NCA Assessment No of
Unique Potential Victims
Identified
2255 2744 +22
Source National Crime Agency Strategic Assessment of the Nature and Scale of Human
Trafficking in the UK4
8 For Scotland the NCA Assessment for 2013 identified 55 unique potential victims of
human trafficking compared with 99 referrals to the NRM It is not known why in contrast to
the position in England and Wales the NCA Assessment for Scotland is lower than the NRM
referrals although it will exclude potential victims who received a negative conclusive decision
and duplicate referrals However these numbers must be treated with significant caution There
remains strong conviction amongst law enforcement bodies and victims organisations that there
are more victims of trafficking than are identified and that even once identified victims are
often unwilling to engage with authorities or identify themselves as having been trafficked For
the purpose of this Financial Memorandum the Scottish Government has accepted the NCA
assessment that there are likely to be between two and three times as many potential victims of
trafficking as are currently identified through the NRM This assessment is based on the Scottish
Governmentrsquos best understanding of the hidden nature of this crime and the known reluctance of
some victims to identify their trafficked status or to engage with public authorities
Criminal justice response to human trafficking and exploitation
9 There have been relatively few prosecutions and convictions for human trafficking
offences under existing criminal justice legislationmdash
The Criminal Justice (Scotland) Act 20035 (―the 2003 Act) provides for offences of
trafficking for the purposes of exploitation by way of prostitution
The Asylum and Immigration (Treatment of Claimants etc) Act 20046 (―the 2004
Act) provides for offences of trafficking for labour and other forms of exploitation
The Criminal Justice and Licensing (Scotland) Act 20107 (―the 2010 Act) amended
and extended the 2003 and 2004 Acts and created a standalone offence of holding
someone in slavery or servitude or requiring a person to perform forced or
compulsory labour
10 The first successful convictions for human trafficking in Scotland were in 2011 under
section 22 of the 2003 Act for trafficking for the purposes of prostitution During 2013 a total of
four people were convicted of human trafficking offences - one person under section 22 of the
2003 Act and three people under section 4 of the 2004 Act for trafficking for forced marriage
4 httpwwwnationalcrimeagencygovukpublications399-nca-strategic-assessment-the-nature-and-scale-of-
human-trafficking-in-2013file 5 httpwwwlegislationgovukasp20037
6 httpwwwlegislationgovukukpga200419
7 httpwwwlegislationgovukasp201013
25
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
The average custodial sentence length for those convicted of trafficking offences was 847 days
(just under two years and four months) as well as any confiscation order imposed
11 Although the number of convictions for trafficking offences has been small police and
the Crown Office and Procurator Fiscal Service (COPFS) have confirmed that even though it is
not possible to always prove the trafficking offence where a credible suspicion exists people
suspected of involvement with trafficking can and often are prosecuted and convicted for other
crimes such as crimes associated with prostitution forced marriage immigration offences and
drugs offences etc
12 Police Scotland has established a dedicated National Human Trafficking Unit to enhance
the police response to human trafficking through awareness raising intelligence gathering
training and providing divisions with advice and specialist knowledge The COPFS has
appointed dedicated expert fiscals to prosecute human trafficking offences
Support for victims of trafficking
13 The Scottish Government currently allocates direct grant funding to non-government
organisations to provide and facilitate immediate support and assistance to the adult victims of
human trafficking This support can include immediate safe accommodation psychological
support assistance in accessing medical treatment material assistance interpretation and
translation and assistance either with repatriation or securing longer-term access to mainstream
services and support such as welfare benefits and housing The provision of support and
assistance is not conditional on the potential victim being willing to participate in the criminal
justice process Under the NRM victims of trafficking are guaranteed ―a recovery and reflection
period to recover from their experience escape the influence of those alleged to have trafficked
or exploited them and consider whether to engage with authorities The Council of Europe
Convention on Action Against Trafficking in Human Beings8 provides for a reflection period of
at least 30 days for all trafficked victims when there are reasonable grounds to believe that the
person concerned is a victim The current minimum recovery and reflection period in Scotland
and the rest of the UK is 45 days
14 In 2013-14 total grant funding of pound723000 was provided by the Scottish Government
towards the costs of ensuring immediate support and assistance for the adult victims and
potential victims of trafficking in Scotland This funding was provided through two non-
government organisationsmdash
the TARA Service which works with women aged 18 years and over across
Scotland where there are concerns that they have been trafficked for commercial
sexual exploitation and
Migrant Help a UK-wide organisation providing support and advice services to
migrants including new asylum claimants refugees EU nationals etc
15 Support for the child victims of trafficking is co-ordinated by local authorities as part of
their child protection arrangements and in line with the policy intention that children remain
8 httpwwwcoeinttdghlmonitoringtraffickingdocsconvntnCETS197_enasp
26
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
children first and that their needs should be treated accordingly The Scottish Government has
produced a toolkit for agencies working with children and young people to ensure that staff are
able to identify trafficked children and make appropriate referrals so that victims can receive
protection and support The toolkit is designed to be used in conjunction with National Child
Protection Guidance9 which was first published in 2010 and refreshed in 2014 and other
relevant national and international guidance Information about current expenditure on child
victims of trafficking is not recorded separately from information about wider expenditure on
child protection services
Lord Advocate guidance on prosecution policy
16 In his letter of 21 January 2013 to the Scottish Parliament European and External
Relations Committee10
the Lord Advocate set out the current arrangements for fiscals
considering the prosecution of a confirmed or potential victim of human trafficking where it is
believed or claimed that the crime was committed as a direct consequence of the personrsquos
trafficked status The letter set out the basis for the current Lord Advocatersquos guidance to
prosecutors including the presumption against the prosecution of a credible trafficking victim
for crimes that arise as a consequence of the victimrsquos trafficked status
Human trafficking strategic approach awareness raising and training
17 The first Scottish Human Trafficking Summit was hosted by the Cabinet Secretary for
Justice in October 2012 The summit brought together key law enforcement public private and
third sector organisations with an interest in human trafficking Following the summit a number
of strategic collaborative actions were agreed and progressed including with reference to
awareness raising and training for frontline staff data collection and analysis identification care
and support for both child and adult victims of trafficking and enhancing enforcement
18 One specific workstream related to awareness raising and training of front-line staff
likely to come into contact with trafficking victims or potential instances of trafficking
Following the summit Police Scotland with support from the Scottish Government and others
prepared published and circulated widely an awareness raising leaflet ndash Reading the Signs11
ndash to
assist police officers and staff in other front line posts in identifying the signs of potential
trafficking The Scottish Government also participated with the UK Government in a UK-wide
public awareness raising campaign about modern slavery and trafficking
19 In addition to general awareness raising specific training material was prepared for key
front-line staff For example all police officers were required to undertake an e-learning course
on human trafficking A special leaflet for health workers was prepared and circulated by NHS
Health Scotland An e-learning module for health workers about their role in identifying and
9 httpwwwscotlandgovukPublications2014053052
10httpwwwscottishparliamentukS3_EuropeanandExternalRelationsCommitteeGeneral20DocumentsLetterfro
mTheLordAdvocatepdf 11
httpwwwscotlandpoliceukassetspdf174967human-traffickingview=Standard
27
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
responding to victims of trafficking was made available through the National Gender Based
Violence and Health Programme12
IMPACT OF SPECIFIC PROVISIONS
PART 1 - OFFENCES
Single trafficking offence
20 The Bill establishes a new single offence of human trafficking for all types of
exploitation for both adults and children replacing existing separate criminal offences (see
paragraph 9 above) As noted above to date there have been relatively small numbers of
prosecutions under existing trafficking offences
21 The maximum penalty for conviction on indictment for the single trafficking offence will
be life imprisonment compared with a maximum of 14 years for the current separate offences
Although it will be for the court to decide how to sentence people convicted under the new single
offence in any given case it is likely that the availability of a higher maximum sentence will
have cost implications for the Scottish Prison Service (SPS)
Revised slavery servitude and forced labour offence
22 The Bill will also repeal and replace the existing exploitation offence within section 47 of
the 2010 Act which criminalises holding someone in slavery or servitude or requiring them to
perform compulsory or forced labour The offence will be revised and strengthened to allow the
court to consider in assessing whether a person has been a victim of an offence the victimrsquos
characteristics such as age physical or mental illness disability or where relevant family
relationships The maximum penalty for the offence will be increased from 14 years for the
current offence to life imprisonment for a conviction on indictment
Statutory aggravators
23 The Bill makes provision for statutory aggravators which apply in cases where an
accused person commits an offence connected with human trafficking and for when the offence
is committed in connection with the accusedrsquos position as a public official The court must take
the aggravation into account in determining the appropriate sentence if it is proved that the
offence is aggravated in this way The statutory aggravator is not anticipated to have any
substantial financial implications for public private or third sector bodies or for individuals
Costs on the Scottish Administration
24 Consolidating and clarifying the existing criminal law on trafficking and exploitation
alongside other measures arising from the Bill and the trafficking and exploitation strategy
including training and awareness raising and support for victims should increase the potential
for successful investigations prosecutions and convictions of human trafficking and exploitation
offences There have been six successful prosecutions for a specific trafficking offence to date in
Scotland with an average custodial sentence length of two years and four months against a
12
httpwwwgbvscotnhsuk
28
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
maximum possible sentence of 14 years The maximum number of prosecutions in any one year
was four individuals in two separate cases
25 Police and prosecutors already have in place specialist resources for investigating and
prosecuting human trafficking and exploitation offences and these provisions will not add to
these costs Law enforcement agencies have confirmed that whilst the number of prosecutions
for specific trafficking offences has been low where victims are identified but are unwilling to
testify individuals suspected of trafficking and exploitation will be prosecuted in court for other
related offences The Lord Advocate has identified that ―If we donrsquot have the evidence [to
prosecute for a specific human trafficking offence] we prosecute for fraud ID theft or asylum
and immigration offences13
26 The Scottish Government does not anticipate therefore significant additional cost
implications for law enforcement agencies or courts as cases will often proceed with a
trafficking offence alongside or in place of other related offences For the same reason the
Scottish Government does not anticipate significant additional cost on the Scottish Legal Aid
Board (SLAB) However if it is assumed that the number of successful trials proceeding in any
single year doubles from two to four there would be some additional costs on the COPFS the
Scottish Court Service (SCS) and SLAB based on the average unit costs for cases proceeded
either through Sheriff Court Solemn procedure or through the High Court These estimated costs
depending on whether cases are proceeded through the High Court or Sheriff Court solemn
procedure are illustrated in the table below
Table 3 Estimated unit costs of additional trial procedures through either High Court or
Sheriff Court solemn procedure (pound000)
Average prosecution
costs per procedure
(COPFS)
Average court costs
per procedure (SCS)
Average legal aid
costs per procedure
(SLAB)
Sheriff Court solemn
procedure (pound000) pound49 pound19 pound16
High Court (pound000) pound556 pound90 pound135
Estimated average
costs of 2 additional
trial procedures 4
accused per annum
(pound000)
pound99-pound1112 pound38-pound180 pound64-pound540
Source costs of the Criminal Justice System in Scotland Dataset (2013)14
27 There will also be costs to the SPS both through any increase in the number of successful
convictions for trafficking and exploitation offences and an anticipated increase in the average
length of custodial sentence for these crimes It is not possible to know for certain the total
13
httpwwwdailyrecordcouknewsscottish-newsonly-three-successful-prosecutions-brought-4457684 14httpwwwscotlandgovukTopicsStatisticsBrowseCrimeJusticePublicationscostcrimjustsc
otcostcrimjustdatasethttpwwwscotlandgovukTopicsStatisticsBrowseCrimeJusticePublicationscostcrimj
ustscotcostcrimjustdataset
29
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
number of future convictions or what sentencing decisions might be taken by courts in individual
cases
28 The table below illustrates the potential cost implications of either maintaining or
increasing the current maximum number of convictions in any individual year from four to eight
convictions For the purpose of the calculation it is assumed that the average custodial sentence
length for trafficking and exploitation offences will increase from two years and four months
(classified as a short-term sentence) to over four years (classified as a long-term sentence) as
increasing the maximum sentence to life imprisonment is anticipated to increase the average
sentence for a trafficking offence The estimated average annual cost of a prison place based on
SPS figures is pound42500 Taking account of the current early release arrangements for long-term
prisoners and the overlapping of individual sentences would result in an estimated increase of 8
to 21 total prison places each year after four years ndash ie with an additional four people receiving
custodial sentences each year and released by the Parole Board at the halfway point of their
sentence or automatically at the two-thirds point The total costs to the SPS will be within a
range of pound340000 to pound890000 These costs will fit within the overall budget costs to the SPS
As at 17 October 2014 there were 7731 people in custody in Scotland An additional 21 places
accounts for 03 of the total prison population
Table 4 Estimated range of costs to the Scottish Prison Service from increasing the
number and average length of successful prosecutions for trafficking offences
Year 1 Year 2 Year 3 Year 4
Additional Prison places 0-4 4-12 8-17 8-21
Additional Cost (pound000) pound0-pound170 pound170- pound510 pound340-pound720 pound340-pound890
Table 5 Estimated range of combined costs for trial procedures and prison places
Year 1 Year 2 Year 3 Year 4
Additional Cost (pound000) pound20-pound353 pound190- pound693 pound360-pound900 pound360-pound1073
Costs on other bodies individuals and businesses
29 There will be no new costs falling on other bodies individuals and businesses as a
consequence of these sections but see the section below with reference to victim support
Costs on local authorities
30 There will be no new costs falling on local authorities as a consequence of these specific
sections
PART 2 - PROTECTION OF VICTIMS
Duty on the Lord Advocate to publish guidance about the prosecution of credible trafficking and
exploitation victims who have committed offences
Costs on the Scottish Administration
31 As noted above the Lord Advocate already prepares and publishes guidance to fiscals
about the prosecution of credible victims of human trafficking for crimes committed as a direct
30
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
consequence of their trafficking status The requirement to publish such guidance would in
future be statutory However there will be no new costs on the Scottish Government or the
COPFS as a consequence of placing the requirement for the Lord Advocate to issue this
guidance on a statutory basis
Costs on other bodies individuals and businesses
32 There will be no new costs falling on other bodies individuals and businesses as a
consequence of these sections
Costs on local authorities
33 There will be no new costs falling on local authorities as a consequence of these sections
Ensure the rights of victims to access and support
34 The Bill will place a statutory duty on the Scottish Ministers to secure the provision of
relevant immediate support and recovery services for adult victims of trafficking subject to an
assessment of need The Bill will specify those victims or potential victims entitled to support
and the minimum time periods during which such services should be provided Specifically the
Bill will require Ministers to provide support and assistance based on each individualrsquos assessed
needs during the recovery and reflection period (currently 45 days) during which the
individualrsquos trafficking status is determined The Bill specifies minimum support and assistance
that should be considered as part of the assessment including access to housing treatment
interpretation services etc The Scottish Ministers have the flexibility to provide support and
assistance outwith the specified reflection and recovery period where this is considered
appropriate
35 As noted above the Scottish Ministers already provide grant funding totalling pound723000
to third sector organisations to assist identified adult potential victims of trafficking Provision of
support to adult victims will be placed on a statutory basis The number of adult potential victims
of trafficking referred through the NRM during 2013 was 77 although not all of these will have
requested assistance or received the full range of support services It is assumed that other
actions arising from the Bill including the single offence and publication of the trafficking and
exploitation strategy will result over time in an increase in identified victims and requests for
assistance and support
Costs on the Scottish Administration
36 The Scottish Government anticipates that improved awareness raising and training of
front-line staff will result in an increase in the number of victims identified over time It is not
possible to know how quickly this improvement will be achieved However between 2012 and
2013 the number of potential identified victims across the UK identified through the NCA
strategic assessment and NRM increased by 22 and 41 respectively Given the need for
awareness raising and training to impact the Scottish Government does not anticipate a similar
scale of increase in the immediate term but the Government considers it reasonable to anticipate
a possible increase of between 10 and 20 per annum in the overall number of requests for
assistance and support each year over the next four years Assuming a similar mix of needs as
31
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
current victims the increased costs to the Scottish Government on top of existing funding
would range between pound290000 to pound580000 per annum by year four
Table 6 Estimated range of costs increases for victim support and assistance (pound000)
Year 1 Year 2 Year 3 Year 4
Additional Cost (pound000) pound0-pound140 pound140-pound280 pound220-pound430 pound290-pound580
Costs on other bodies individuals and businesses
37 There will be no additional costs on other public bodies individuals or businesses
associated with these specific provisions There will be no direct additional costs falling on third
sector organisations as a consequence of the specific provisions It is likely however that all or
part of the additional funding identified above will be directed by the Scottish Government
through relevant third sector organisations with the expertise to provide immediate support and
protection to victims
Costs on local authorities
38 The Bill creates no new legislative requirements for the delivery of childrenrsquos services
recognising that this already exists It is therefore not anticipated that the Bill will result in any
quantifiable additional costs on local authorities or other public bodies as a result of support for
child victims Child victims of trafficking are supported as part of the Getting It Right for Every
Child (GIRFEC) approach any child whether identified as trafficked or not will be assessed on
the basis of its needs It is anticipated that as a consequence of the strategy (for which the Bill
provides) that more children may be identified as trafficked It is noted however that various
reports including most recently the UK Governmentrsquos NRM Review Report15
have found that
children who are already receiving support from relevant authorities in the UK are often not
identified as trafficked victims because of lack of awareness of the referral process It may be
that actions arising from the development of the strategy and dialogue with stakeholders will
give rise to additional activity or costs with reference to child victims of trafficking but these are
not known and cannot be estimated at this time
PART 3 - CONFISCATION OF PROPERTY
39 The Bill will provide police with powers to detain the property such as cars boats etc of
a person arrested for a trafficking offence This power will be exercised at the time of arrest and
is not expected to impose any additional costs on the police or others
Costs on the Scottish Administration
40 There will be no additional costs on the Scottish Government as a result of these
provisions Individuals can apply to the court to have vehicles ships or aircraft released from
detention This will be considered as part of the overall case and will not add to the costs to the
criminal justice system
15
httpsnrmhomeofficegovuk
32
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
Costs on other bodies individuals and businesses
41 There will be no additional costs on other public bodies individuals or businesses
including Police Scotland as a result of these specific provisions
Costs on local authorities
42 There will be no additional costs on local authorities as a result of these specific
provisions
PART 4 - TRAFFICKING AND EXPLOITATION PREVENTION AND RISK ORDERS
Introduce new measures to disrupt and prevent trafficking and exploitation
43 The Bill will introduce two new civil orders and associated interim orders to assist in
preventing trafficking and exploitation Trafficking and Exploitation Prevention Orders (TEPOs)
and Trafficking and Exploitation Risk Orders (TEROs) Where an individual has been convicted
of a trafficking or exploitation offence or an offence with a statutory trafficking aggravator a
TEPO may be imposed by a court where there is a risk that that individual may commit a further
human trafficking offence and it is necessary to make the order to protect people from the
physical or psychological harm which might occur if such an offence were committed The
TEPO will prevent the individual from engaging in activities described in the order Where a
person has not been convicted of a trafficking or exploitation offence but a court considers that
the person presents a significant risk of harm to others through the individual committing a
trafficking or exploitation offence the court can impose a TERO restricting specific activities or
imposing requirements These orders will be civil but breach of an order will constitute a
criminal offence with a maximum penalty of five years in prison available to the court
44 The Bill will categorise the trafficking and exploitation offences as lifestyle offences in
order to automatically trigger provisions within the Proceeds of Crime Act 2002 (―the 2002
Act) The definition of an offence as a ―lifestyle offence allows for proceedings under the
2002 Act to confiscate assets or monies from the individual convicted of the offence
Costs on the Scottish Administration
45 The purpose of TEPOs and TEROs is to prevent criminal activity associated with
trafficking and exploitation from arising There will be some cost implications for law
enforcement organisations which will need to monitor the terms of any order imposed by the
courts However these will be offset by the savings made from being able to intervene at an
early stage of criminality if an order has been breached For the equivalent civil orders within the
UK Modern Slavery Bill the UK Government has estimated potential net savings of between
pound130000 and pound1090000 per annum The Scottish Government has not incorporated any
savings for the purpose of Scottish legislation but expects the costs of implementing TEPOs and
TEROs and detention powers to be at least cost neutral for the Scottish Administration and other
public bodies
33
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
46 The Bill will give courts powers to impose a TEPO at the time of sentencing There will
be no immediate additional costs for the courts or COPFS associated with TEPOs imposed as
part of sentencing The Chief Constable of Police Scotland will also be able to apply to the court
for a TEPO to be imposed on a relevant offender previously convicted of a trafficking offence
There will be costs to Police Scotland in making the application and to the SCS and to SLAB in
considering the application As there have been only six previous convictions for trafficking
offences in Scotland the Scottish Government expects the number of applications for TEPOs for
previous convictions to be small one-off and will not add to the overall costs of the criminal
justice system The Chief Constable of Police Scotland can also apply to the court for a TERO
against an individual where it is considered that that individual is likely to commit a trafficking
offence
47 Looking at the equivalent costs for similar civil orders eg Sexual Offences Prevention
Orders the total costs to the SCS the COPFS and SLAB of applying for a TERO or post-
sentencing TEPO are estimated at between pound1000 and pound6000 per order It is not possible to
know how many TEPOs or TEROs might be applied for but assuming a number half the level of
the estimated maximum number of potential convictions for trafficking offences each year (four
to eight) would give estimated costs of between pound2000 (2 x pound1000) and pound24000 (4 x pound6000)
per annum
48 There will be costs to Police Scotland in monitoring TEPOs and TEROs whether
imposed at the time of sentence or by application but this will sit alongside Police Scotlandrsquos
existing crime prevention and investigative responsibilities and is not expected to add to
manpower costs
49 In addition to the costs of imposing and monitoring TEPOs and TEROs there will be
costs associated with prosecuting a breach of a TEPO or TERO Analysis in England and Wales
indicates that breaches of equivalent Serious Crime Prevention Orders are relatively low
Assuming one breach per annum the total combined costs to the COPFS the SCS and SLAB
would be between pound8400 and pound78100 per annum (see the combined costs for either sheriff
court or High Court procedures set out in Table 3 above) Assuming a maximum sentence of
five years the costs to the SPS for additional prison places would be between pound85000 and
pound127500 per annum (ie the pound42500 average costs of a prison place times either two or three
places depending on whether offenders are released early at the halfway or two-thirds point of
their sentence)
50 It is important to remember however that the purpose of TEPOs and TEROs is to
prevent further trafficking and exploitation offences occurring A TEPO or TERO will only be
imposed where a court considers that there is a credible risk of an individual committing such a
crime Any costs associated with the imposition and breach of TEPOs and TEROs needs to be
offset against the potential costs of prosecutions If each TEPO or TERO prevents the costs of a
conviction for an offence as set out in Part 1 above the costs to the Scottish Administration
would be at least cost neutral in terms of saved court and prison places expenditure
34
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
Costs on other bodies individuals and businesses
51 There will be no costs on other bodies businesses or other individuals as a consequence
of these sections
Costs on local authorities
52 There will be no new costs on local authorities as a consequence of these sections
PART 5 - STRATEGY AND REPORTING
Ensure a strategic cross-agency approach to tackling trafficking
53 The Bill places a duty on the Scottish Ministers to prepare publish and regularly review
and update a trafficking and exploitation strategy to assist in ensuring a co-ordinated and
strategic approach to this issue The provisions place a duty on Ministers to consult with such
organisations and individuals as they consider to have a relevant interest in the issues of human
trafficking and exploitation The Bill places a duty on relevant public bodies to be named in
regulations to assist in the preparation and review of the strategy
54 The Bill will place a duty on relevant public authorities to provide anonymised data about
potential human trafficking and exploitation victims to Police Scotland
Costs on the Scottish Administration
55 Activity arising from these provisions within the Bill will build on the activity and
current resources already committed to this area of work
56 Based on similar activities the estimated additional costs to the Scottish Ministers of
preparing and reviewing a trafficking and exploitation strategy will be approximately pound25000
every three years Alongside the preparation and publication of the strategy the Scottish
Ministers would also propose to support additional awareness raising and training activity to
build on the existing awareness raising and training activity already undertaken by relevant
organisations including the NHS Police Scotland and COPFS Consideration would be given to
how best to co-ordinate these resources alongside existing expenditure and activity For the
purposes of the Financial Memorandum and based on current activity additional costs on top of
existing activity are estimated at approximately pound100000 to pound250000 per annum over the first
four years of the Bill This is based on the best estimated costs of preparing and publishing
publicity and guidance material averaged over a number of years The exact costs will depend
on decisions taken in dialogue with stakeholders as part of the preparation of the strategy
57 The Scottish Government anticipates that the costs to relevant public authorities of
providing anonymised data about potential human trafficking victims to Police Scotland will be
marginal Costs to Police Scotland of collating this data will form part of their existing
intelligence gathering activity
35
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
Costs on other bodies individuals and businesses
58 There will be some costs on other bodies individuals and businesses in engaging with the
Scottish Ministers in the preparation and publication of the Strategy For business and
individuals this will be voluntary depending on their willingness to engage For public bodies
their level of engagement will depend on the relevance of the issue of trafficking and
exploitation to their work and their potential contribution to combating this behaviour Any
additional costs are expected to fit within or sit alongside their existing responsibilities for
example with reference to promoting and ensuring equalities and the application of human
rights obligations
Costs on local authorities
59 There will be costs on local authorities associated with engaging in the preparation and
review of the trafficking and exploitation strategy and in awareness raising and training of front-
line staff The additional costs should be marginal on top of the existing guidance and activity
already in place with reference to the identification and support of potential child victims of
trafficking The aim will be to minimise costs for other front-line local authority staff by
adapting the general awareness raising and training materials described above
SUMMARY
60 The table below provides a summary of the costs of each element of the Bill as described
above
Table 7 Summary table of costs for each aspect of the Bill (pound000)
Year 1 Year 2 Year 3 Year 4
Clarifying amp
Strengthening the
Criminal Law ndash Para 28 pound20-pound353 pound190- pound693 pound360-pound900 pound360-pound1073
Ensure the rights of
victims to access and
support - Para 36 pound70-pound140 pound140-pound280 pound220-pound430 pound290-pound580
Introduce new measures to
disrupt and prevent
trafficking pound016
pound0 pound0 pound0
Ensure a strategic cross
agency approach to
tackling trafficking ndash Para
56 pound125-pound275 pound100-pound250 pound100-pound250 pound125-pound275
TOTAL pound215-pound768 pound430-pound1223 pound680-pound1580 pound775-pound1928
16
The Scottish Government considers that the overall costs are at least cost neutral ndash see paragraphs 45 to 50
36
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December
SCOTTISH GOVERNMENT STATEMENT ON LEGISLATIVE
COMPETENCE
On 11 December 2014 the Cabinet Secretary for Justice (Michael Matheson MSP) made the
following statement
―In my view the provisions of the Human Trafficking and Exploitation (Scotland) Bill
would be within the legislative competence of the Scottish Parliament
mdashmdashmdashmdashmdashmdashmdashmdashmdashmdash
PRESIDING OFFICERrsquoS STATEMENT ON LEGISLATIVE
COMPETENCE
On 11 December 2014 the Presiding Officer (Rt Hon Tricia Marwick MSP) made the following
statement
―In my view the provisions of the Human Trafficking and Exploitation (Scotland) Bill
would be within the legislative competence of the Scottish Parliament
37
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December
SP Bill 57ndashEN Session 4 (2014)
HUMAN TRAFFICKING AND EXPLOITATION
(SCOTLAND) BILL
EXPLANATORY NOTES
(AND OTHER ACCOMPANYING DOCUMENTS)
Parliamentary copyright Scottish Parliamentary Corporate Body
Information on the Scottish Parliamentrsquos copyright policy can be found on the website -
wwwscottishparliamentuk
Produced and published in Scotland on behalf of the Scottish Parliamentary Corporate Body by APS
Group Scotland
ISBN 978-1-78534-569-2
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
16 Subsection (5)(a) provides that on summary conviction of the offence the maximum
penalty is imprisonment for a term not exceeding 12 months a fine not exceeding the statutory
maximum or both Subsection (5)(b) provides that on conviction of the offence on indictment
the maximum penalty is imprisonment for life or a fine or both
Section 2 Application of offence to conduct in United Kingdom and elsewhere
17 Section 2 provides for the application of the human trafficking offence to conduct in the
United Kingdom and elsewhere reflecting the fact that human trafficking activity may involve
activity that is completely or partly outwith Scotland This measure implements the terms of
Article 10(2)(c) (jurisdiction) of the Directive of the European Parliament and of the Council on
preventing and combating trafficking in human beings and protecting victims replacing
Framework Decision 2002629JHA (―EU Directive)4 It should be read with the definition of
travel in section 36
18 Subsections (1) and (2) provide that a UK national a person who at the time of the
offence was habitually resident in Scotland or a body incorporated under the law of a part of the
UK commits an offence of human trafficking regardless of where the arranging or facilitating of
travel takes place or where the travel itself takes place Whether or not a person is ―habitually
resident in Scotland will be determined in the light of all the facts and circumstances of the
case
19 Subsection (3) provides that any other person commits the offence of human trafficking
only if any part of the arranging or facilitating of travel takes place in the UK or the travel
consists of arrival in or entry into departure from or travel within the UK
Section 3 Exploitation for purposes of offence of human trafficking
20 Section 3 describes what constitutes exploitation for the purposes of the offence of human
trafficking By virtue of subsection (1) only exploitation of a type mentioned in subsections (2)
to (8) is to be regarded as exploitation in this context
21 Subsection (2) provides that a person is exploited if the person is the victim of conduct
which involves the commission of an offence under section 4 of the Bill (slavery servitude and
forced or compulsory labour) or would be if the conduct occurred in Scotland
22 Subsections (3) to (5) deal with prostitution and sexual exploitation and provide that a
person is exploited ifmdash
another person exercises control direction or influence over the first personrsquos
prostitution in a way which shows that the other person is aiding abetting or
compelling the prostitution
another person involves the first person in the making or production of obscene or
indecent material or
4 httpeur-lexeuropaeuLexUriServLexUriServdouri=OJL201110100010011ENPDF
5
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
the person is the victim of conduct constituting one of a number of listed sexual
offences (or which would constitute such an offence if that conduct occurred in
Scotland)
23 The categories of exploitation related to prostitution and the making of indecent material
are drawn from the existing offence in section 22 of the 2003 Act The category related to other
forms of exploitation in connection with sexual offences is a new development in Scots law
though has some precedent under the Sexual Offences Act 2003 in England and Wales
24 Subsection (6) deals with exploitation relating to the removal of organs etc It provides
that a person is exploited in that context if they are encouraged required or expected to do
anything constituting either an offence under Part 1 of the Human Tissue (Scotland) Act 2006
which deals principally with removal of organs for transplantation or any other offence under
the law of Scotland involving removal of a part of the human body (or anything which would
constitute such an offence were it done it Scotland) This latter category ensures that the
removal of organs or tissue for purposes other than transplantation is caught by the trafficking
offences This covers the removal of body parts for research sacrificial rites consumption etc
For these purposes a part of the body comprises all parts of the body including blood
25 Subsections (7) and (8) make more general provision Subsection (7) establishes that a
person is exploited if force threats or deception are used to induce the person to provide services
or benefits or to enable another person to acquire benefits Subsection (8) provides that a person
is exploited if another person takes advantage of the personrsquos vulnerability to use or attempt to
use the person to provide services or benefits (or to enable another person to acquire benefits)
This will ensure the offence captures those cases where the role of the person being exploited is
entirely passive and where the person is being used as a tool by which others can gain a benefit
of any kind
26 The categories of exploitation in subsections (6) to (8) are derived from section 4 of the
2004 Act
Slavery servitude and forced or compulsory labour
Section 4 Slavery servitude and forced or compulsory labour
27 Section 4 provides for an offence of slavery servitude and forced or compulsory labour
Subsections (1) and (2) provide that a person is guilty of an offence if that person holds another
person in slavery or servitude or requires that other person to perform forced or compulsory
labour in circumstances which show that the first person knows or ought to know that the person
is being so held The offence must be interpreted in accordance with Article 4 of the European
Convention on Human Rights That Article prohibits a person from being held in slavery or
servitude or being required to perform forced or compulsory labour This is currently an offence
under section 47 of the 2010 Act which was created in response to the case of Siliadin v France5
(where the European Court of Human Rights held that there had been a violation of Article 4 in
relation to the holding of an individual in domestic servitude)
5 Application no 7331601 httphudocechrcoeintsitesengpagessearchaspxi=001-69891
6
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
28 Subsection (3) provides that in assessing whether a person has been the victim of the
offence the court is to have regard to any of the alleged victimrsquos characteristics that make the
person more vulnerable than other people Examples of these characteristics include age health
or family relationships
29 Subsection (4) sets out the maximum penalty available on conviction of the offence of
slavery servitude and forced or compulsory labour This is an increase from the current
maximum penalty for the offence under section 47 of the 2010 Act Subsection (4)(a) provides
that on summary conviction of the offence the maximum penalty is imprisonment for a term not
exceeding 12 months a fine not exceeding the statutory maximum or both Subsection (4)(b)
provides that on conviction of the offence on indictment the maximum penalty is imprisonment
for life a fine or both
Aggravation as to human trafficking
Section 5 General aggravation of offence
30 Section 5 makes provision for a statutory aggravation which applies in cases where an
accused commits any other offence and that offence has a connection with a human trafficking
offence Where an indictment or complaint libels or specifies that an offence is aggravated by a
connection with human trafficking activity and it is subsequently proved that the offence is
aggravated in that way the court must state on conviction that the offence is so aggravated
record the conviction in a way which shows that the offence is so aggravated take the
aggravation into account when determining the appropriate sentence and state the extent of any
difference in the sentence in light of the aggravation (or if there is no difference the reasons for
that) (subsections (1) and (5))
31 Subsection (2) sets out the circumstances in which an offence can be regarded to have
been aggravated by a connection with human trafficking This relies on proof that the accused
was motivated in whole or in part by the objective of committing or conspiring to commit the
offence of human trafficking In terms of subsection (3) it is not material to establishing the
aggravation whether or not the offence of human trafficking was actually committed by the
offender or another person
32 Subsection (4) provides clarification that corroboration is not needed to prove that an
offence is aggravated by a connection with human trafficking activity ndash evidence from a single
source is sufficient This is consistent with the existing law in relation to both corroboration and
statutory aggravations This position is under review pending further parliamentary scrutiny of
the Criminal Justice (Scotland) Bill
Section 6 Aggravation involving public official
33 Section 6 makes similar provision about a statutory aggravation which applies in cases
where a public official acting or purporting to act in the course of official duties commits the
offence of human trafficking
34 Subsection (4) sets out the steps the court must take when it is libelled in an indictment or
specified in a complaint that the offence of human trafficking is aggravated by an abuse of a
7
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
public position and proved that the offence is so aggravated These are similar to the steps which
must be taken in relation to the general aggravation in section 5
35 Subsection (5) defines those to be considered as a public official for the purposes of
section 6 while subsection (6) defines the term ―an international organisation for the purposes
of this section
36 Subsection (7) enables the Scottish Ministers to modify by regulations the definition of
who is a public official and the definition of an international organisation Any such regulations
will be subject to the affirmative procedure
PART 2 ndash PROTECTION OF VICTIMS
Prosecution of victims
Section 7 Lord Advocatersquos guidelines on prosecution of victims of offences
37 Section 7 places a duty on the Lord Advocate to prepare and publish guidelines for
prosecutors about the prosecution of suspected or confirmed victims of the offence of human
trafficking and the offence under section 4 of the Bill
38 Subsection (2) sets out that the guidelines must include factors to be taken into account or
steps to be taken when deciding whether to prosecute a person who does an act which constitutes
an offence having been compelled to do so and that the compulsion is directly attributable to the
person being or appearing to be a victim of an offence of human trafficking or as the case may
be under section 4 of the Bill
39 Subsection (3) provides that the Lord Advocate may from time to time revise the
guidelines
Support and assistance for adult victims of human trafficking
Section 8 Duty to secure support and assistance
40 Article 12 of the Council of Europe Convention on Action against Trafficking in Human
Beings6 (―COE Convention) sets out the support and assistance which must be provided for
trafficked victims The UK Government ratified the COE Convention in December 2008 and
Scotland became bound by its terms in April 2009 Currently there is no statutory basis for
potential victims of trafficking to access support and information on the type of support that they
are entitled to Support is currently provided through support agencies with grant funding from
the Scottish Ministers
41 Section 8 places a duty on the Scottish Ministers to secure the provision of support and
assistance for adult victims of human trafficking on an assessment of needs during a defined
period It also sets out a discretionary power for the Scottish Ministers to arrange the provision
of support and assistance outwith the mandatory period
6 httpconventionscoeintTreatyenTreatiesHtml197htm
8
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
42 Subsection (1) provides that where there are reasonable grounds to believe that an adult is
a victim of human trafficking the Scottish Ministers must secure the provision of such support
and assistance as is necessary given the adultrsquos needs for the relevant period
43 Subsection (2) defines the relevant period It begins on the day it is determined there are
reasonable grounds to believe that the adult is a victim of human trafficking (paragraph (a)) and
ends on the earlier of either the end of a period specified in regulations made by the Scottish
Ministers (paragraph (b)(i)) or the date on which there is a conclusive determination that the
adult is or is not a victim of a human trafficking offence (paragraph (b)(ii))
44 Subsection (3) gives the Scottish Ministers discretion to provide support and assistance
outwith the mandatory period under subsection (2) The support and assistance may be provided
to the adult during the period when a competent authority is determining whether there are
reasonable grounds to believe that the person is a victim of human trafficking (paragraph (a)) It
may also be provided before the date on which there is a conclusive determination in relation to
the adult if the mandatory period has ended by then (paragraph (b)) or after that conclusive
determination for such period as Ministers think appropriate (paragraph (c))
45 Subsection (4) provides a non-exhaustive list of the kind of support and assistance that
may be provided under section 8 The list provides that support and assistance may be provided
in connection with (but not limited to) the followingmdash
accommodation
day to day living
medical advice and treatment
language translation and interpretation
counselling
legal advice
information about other services available to the adult and
repatriation
46 Subsection (5) provides that the Scottish Ministers must ensure that in securing the
provision of support and assistance assistance is only provided where the adult consents
(subsection (5)(a)) and that the provision of assistance is not made conditional on the adult
assisting with a criminal prosecution or investigation (subsection (5)(b))
47 Subsection (6)(a) describes when there are reasonable grounds to believe that an adult is a
victim of a trafficking offence for the purposes of securing support and assistance Subsection
(6)(b) describes what is meant by a ―conclusive determination that an adult is or is not a victim
of an offence of human trafficking for these purposes
48 Subsection (7) defines what is meant by the terms ―competent authority and ―the
Trafficking Convention for the purposes of this section
9
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
PART 3 - CONFISCATION OF PROPERTY
Detention and forfeiture
Section 9 Detention of vehicle ship or aircraft
49 Section 9 sets out the power of a constable to detain a vehicle ship or aircraft if a person
has been arrested for an offence of human trafficking
50 Subsection (1) describes the circumstances where a police constable may detain a vehicle
ship or aircraft Subsection (1)(a) provides that a constable may detain a vehicle ship or aircraft
if a person has been arrested for an offence of human trafficking and the constable has
reasonable grounds to believe that a forfeiture order would be made if the person arrested were
convicted of the offence (subsection (1)(b))
51 Subsection (2) provides for the duration of the detention of the property Subsection
(2)(a) provides that the vehicle ship or aircraft may be detained until a decision is taken as to
whether or not to begin solemn proceedings against the person arrested for the offence In
circumstances where solemn proceedings have begun the property may be detained until the
person is acquitted (subsection (2)(b)(i)) the person is convicted and a decision is made whether
or not to order forfeiture of the property under section 10 (subsection (2)(b)(ii)) or the
proceedings are otherwise concluded (subsection (2)(b)(iii))
52 Subsections (3) and (4) set out the circumstances in which solemn proceedings are to be
taken to have commenced and concluded for the purposes of this section
53 Subsection (5) lists the circumstances in which a person (including the accused) with a
relevant interest in the detained property may apply to the sheriff for release of the vehicle ship
or aircraft Subsection (6) sets out the sheriffrsquos power to order release subject to satisfactory
security being tendered
54 Subsection (7) provides that the sheriff may impose such other conditions as to the
release of the detained property as the sheriff thinks fit
Section 10 Forfeiture of vehicle ship or aircraft
55 Section 10 sets out the power of the court to order forfeiture of a vehicle ship or aircraft
used or intended to be used in connection with an offence of human trafficking
56 Subsections (1) to (3) provides that forfeiture of a vehicle ship or aircraft used or
intended to be used in connection with the offence of human trafficking may be ordered if a
person convicted on indictment of that offence when the offence was committedmdash
owned the vehicle ship or aircraft
was a director secretary or manager of a company which owned it
was in possession of it under a hire purchase agreement
10
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
was a director secretary or manager of a company which was in possession of it
under a hire purchase agreement
in relation to a vehicle was driving it
in relation to a ship or aircraft was the charterer of it or was acting as captain of it
57 Subsection (4) makes special provision about cases where a ship or aircraft is to be
forfeited but the offender does not own it and was not a director secretary or manager of a
company which owns it It provides that in those circumstances forfeiture of a ship or aircraft
may only be ordered if any one of the tests listed in this subsection is satisfied Subsection (4)(a)
provides that if a person who at the time the offence was committed owned the ship or aircraft
or was a director secretary or manager of a company which owned it knew or ought to have
known of the intention to use it in the course of the commission of the offence of human
trafficking then forfeiture of a ship or aircraft may be ordered Subsection (4)(b) provides that
in the case of a ship (other than a hovercraft) if its gross tonnage is less than 500 then forfeiture
of that ship may be ordered Subsection (4)(c) provides that in the case of an aircraft if the
maximum weight at which it may take off in accordance with its certificate of airworthiness is
less than 5700 kilogrammes then forfeiture of that aircraft may be ordered under this section
Protection is provided for particular categories of owner who due to the size of the ship or
aircraft in question or the circumstances in which it is used for trafficking do not know or
reasonably suspect or are unlikely to know or reasonably suspect that the ship or aircraft is
being used in that way There is a greater likelihood that an owner of a vehicle or smaller types
of ships or aircraft will have actual or constructive knowledge that their property is being or
intended to be used for the purposes of trafficking
58 Subsection (5) provides that forfeiture cannot be ordered without giving any person
claiming an interest in the relevant property the chance to make representations
Proceeds of crime
Section 11 Proceeds of Crime Act 2002 lifestyle offences
59 Section 11 amends Schedule 4 to the Proceeds of Crime Act 2002 (―2002 Act) to
categorise all trafficking and exploitation offences as lifestyle offences for the purposes of that
Act A conviction of a lifestyle offence triggers assumptions under the 2002 Act that the accused
has a criminal lifestyle and that the accusedrsquos property is recoverable as criminal proceeds
60 Section 11(a) amends Schedule 4 to the 2002 Act by substituting paragraph 4 thereof
with a list of all offences related to trafficking and thus categorising all such offences as lifestyle
offences for the purposes of the 2002 Act Section 11(b) amends the same Schedule by inserting
a new paragraph 4A to provide that an offence under section 4 of the Bill also constitutes a
lifestyle offence
11
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
PART 4 ndash TRAFFICKING AND EXPLOITATION PREVENTION AND RISK ORDERS
Trafficking and exploitation offences
Section 12 Relevant trafficking or exploitation offences
61 Section 12 provides a list of the relevant trafficking and exploitation offences for the
purposes of trafficking and exploitation prevention and risk orders made under the Act The list
includes repealed provisions as orders (other than orders on sentencing) may still be made with
reference to convictions under such provisions
62 Subsection (2) provides that the Scottish Ministers may modify by regulations the
offences contained in the list Under section 37(2) any such regulations are subject to the
affirmative procedure
Trafficking and exploitation prevention orders
Section 13 Prevention orders on sentencing
63 Section 13 provides that a court may instead of or in addition to dealing with the person
in any other way make a trafficking and exploitation prevention order (TEPO) on sentencing of
an adult
64 Subsection (1) sets out the three circumstances where the court may make a TEPO
against a person on sentencing The first is conviction of an adult of a relevant trafficking and
exploitation offence The second circumstance is acquittal of such an offence by reason of the
special defence set out in section 51A of the Criminal Procedure (Scotland) Act 1995 (which
provides a defence where a person is unable by reason of mental disorder to appreciate the nature
or wrongfulness of their conduct) The third circumstance is a finding of unfitness for trial in
relation to such an offence under section 53F of that Act (which provides that a person is unfit
for trial if it is established on the balance of probabilities that the person is incapable by reason
of a mental or physical condition of participating effectively in that trial) In relation to the third
circumstance there must also be a finding that the adult has done the act constituting the offence
65 Subsection (3) provides that the court may make a TEPO at its own instance or on the
motion of the prosecutor
66 Subsection (4) provides the test for making a TEPO on sentencing The court must be
satisfied that there is a risk that the person in respect of whom the order is to have effect may
commit another offence mentioned in section 12 and that it is necessary to make the prohibitions
and requirements in the order for the purpose of protecting persons generally or particular
persons from the physical or psychological harm which would be likely to occur if the person
committed such an offence
67 Subsection (5) provides a definition of ―the court for the purposes of this section
12
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
Section 14 Prevention orders on application
68 Section 14 provides that the chief constable may apply to a sheriff for a TEPO against an
adult
69 Subsection (2) sets out the appropriate sheriff to whom such an application should be
made
70 Subsection (3) sets out the tests for making a TEPO on application The sheriff must be
satisfied that the person in respect of whom the order is sought is a ―relevant offender
(subsection (3)(a)) that since the person first became a relevant offender the person has acted in
a way which means that there is a risk the person will commit a relevant trafficking or
exploitation offence (subsection (3)(b)) and it is necessary to make the prohibitions or
requirements in the order for the purpose of protecting persons generally or particular persons
from the physical or psychological harm which would be likely to occur if the person committed
such an offence (subsection (3)(c))
71 Subsection (4) provides that conduct which occurred before this section came into force
may be considered when determining whether there is a risk that a person may commit a relevant
trafficking offence
Section 15 Meaning of relevant offender
72 Section 15 defines what is meant by a ―relevant offender for the purposes of section 14
73 Subsection (2) provides that a person is a relevant offender if any of the court disposals
listed in the subsection have been made in the UK in relation to that person and in respect of a
relevant trafficking or exploitation offence (as set out in section 12 of the Bill)
74 Subsections (3) to (5) deal with findings of courts and tribunals outside the United
Kingdom Subsection (3) provides that a person is a relevant offender if under the law of a
country outside the United Kingdom a listed disposal is made in respect of a person in relation
to an offence which is equivalent to an offence listed in section 12 Subsections (4) and (5) set
out tests for determining whether an offence is equivalent to a relevant offence In particular
such offences are acts which constitute offences under the law of the country concerned and
which would constitute a relevant trafficking or exploitation offence under the law of Scotland if
done in the UK by a UK national or person habitually resident in Scotland or as regards the UK
(eg by virtue of the fact that travel was arranged into out of or within the UK)
75 Subsection (6) establishes a mechanism for determining whether an act constituting an
offence in a country outside the UK would constitute an offence under the law of Scotland
76 Subsection (8) provides that for the purposes of this section convictions acquittals
findings and cautions include those which took place before this section comes into force
13
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
Section 16 Contents of prevention orders
77 Section 16 makes provision about the prohibitions or requirements (or both) that may be
contained in a TEPO Each prohibition and requirement in a TEPO is for a fixed period and the
order itself is for a fixed period The order and the prohibitions and requirements may all be for
the same period However the Bill allows some requirements and prohibitions in the order to be
set for a period shorter than that of the order if that is appropriate
78 Subsection (2) provides that both the order and any prohibition or requirement in the
order must have a specified fixed period of at least five years The only exception to that
requirement relates to a prohibition on foreign travel and an order containing only a prohibition
on foreign travel (which is dealt with in section 17) and relates to a period of not more than five
years Subsection (4) provides that a TEPO may prohibit the person in respect of whom the
order is made from doing things or require that person to do things Different prohibitions and
requirements may have effect for different periods
79 Subsection (5) provides that if the court makes a TEPO in respect of a person already
subject to such an order the earlier order will cease to have effect
80 Subsection (6) defines what is meant by ―the court for the purposes of the section
Section 17 Prohibitions on foreign travel
81 Section 17 makes provision about prohibitions on foreign travel in TEPOs
82 Subsection (1) provides that a prohibition on foreign travel contained in a TEPO and
any TEPO which contains such a prohibition and no other prohibitions or requirements must be
for a fixed period of not more than five years
83 Subsection (2) defines a prohibition on foreign travel as a prohibition on travelling to
countries outside the UK (either by reference to particular countries or generally)
84 Subsection (3)(a) determines that a prohibition on foreign travel varied or renewed by
application under section 18 or 19 may be varied or renewed for further fixed periods of no more
than five years each time Subsection (3)(b) requires that an order containing only a foreign
travel restriction may be renewed for up to that fixed period
85 Subsection (4) sets out the requirement on a person in respect of whom a TEPO
containing a prohibition on foreign travel to all countries outwith the United Kingdom has been
made to surrender at a police station each passport that the person has
86 Subsection (5) provides that any passport surrendered must be returned as soon as is
reasonably practicable after the person ceases to be subject to such a prohibition on foreign
travel Circumstances where this subsection would not apply are provided for at subsection (6)
for example where a passport has already been returned to the relevant authority
14
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
Section 18 Orders on sentencing variation renewal and discharge
87 Section 18 makes provision about varying renewing and discharging TEPOs made on
sentencing
88 Subsections (2) to (4) set out general powers in this context The person in respect of
whom the TEPO is made or the prosecutor may apply for variation renewal or discharge of such
a TEPO That application is to be made to the High Court where that court made the order and
to the sheriff otherwise Subsection (4)(b) makes provision about shrieval jurisdiction in this
connection Where the relevant court receives such an application it may vary renew or
discharge individual prohibitions or requirements or add new prohibitions or requirements it
may renew the whole order or it may discharge the whole order
89 Subsection (5) provides that the court must before making an order under this section
give an opportunity to make representations to the person in respect of whom the order is made
the prosecutor and the chief constable Subsection (6) provides that after taking into account
any such representations the court may then make such order as it thinks appropriate
90 Subsection (7) sets out the tests the court must consider when deciding whether to vary
renew or discharge TEPOs made on sentencing (including by adding new prohibitions or
requirements) or any prohibitions or requirements within them Subsection (7)(a) applies the
tests for the making of a TEPO to any variation (including an increase or a relaxation of a
requirement or prohibition) renewal or addition Subsection (7)(b) applies those tests to any
discharge of a prohibition or requirement or of an order
91 Subsection (8) makes it clear that an order varying or renewing a TEPO is subject to the
requirements and prohibitions established by sections 16 and 17 in the same way as the original
order
92 Subsection (9) defines ―prosecutor for the purposes of this section
Section 19 Orders on application variation renewal and discharge
93 Section 19 makes provision about the variation renewal or discharge of TEPOs made on
application
94 Subsections (2) to (4) set out general powers in this context The person in respect of
whom the TEPO is made or the chief constable may apply to the sheriff for variation renewal or
discharge of a TEPO made on application Subsection (4)(b) makes provision about shrieval
jurisdiction in this connection Where the sheriff receives such an application the sheriff may
vary renew or discharge individual prohibitions or requirements or add new prohibitions or
requirements renew the order so that the period of the order itself is extended or discharge the
whole order
95 Subsection (5) provides that the sheriff must before making an order under this section
give an opportunity to make representations to the person in respect of whom the order is made
15
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
and the chief constable Subsection (6) provides that after taking into account any such
representations the sheriff may then make such an order as the sheriff thinks appropriate
96 Subsection (7) sets out the tests the sheriff must consider when deciding whether to vary
renew or discharge TEPOs on application (including by adding new prohibitions or
requirements) or any prohibitions or requirements within them Those tests reflect the tests for
the making of a TEPO
97 Subsection (8) provides that when determining an application under this section the
sheriff may consider conduct which occurred before this section comes into force
98 Subsection (9) makes it clear that an order varying or renewing a TEPO is subject to the
requirements and prohibitions established by sections 16 and 17 in the same way as the original
order
Section 20 Interim prevention orders
99 Section 20 gives power to a sheriff to make an interim TEPO while the main application
under section 14 is being determined The sheriff may make such an order if the sheriff
considers it just to do so (subsection (1)) and such an order may contain prohibitions or
requirements (or both) in relation to the person in respect of whom the order is to have effect
(subsection (2)) Those prohibitions or requirements may relate to things to be done or not done
in any part of Scotland or anywhere outwith Scotland (subsection (3))
100 Subsection (4) provides that an interim TEPO will only have effect for a fixed period
specified in the order and will cease to have effect on the determination of an application for a
TEPO under section 14 if that fixed period has not expired
101 Subsection (5) allows for an application to a sheriff in the sheriffdom of the sheriff who
made the interim TEPO for variation or discharge of that order Such an application may be
made by the person in respect of whom the order was made or the chief constable
Section 21 Appeals prevention orders
102 Section 21 provides for an appeals process in relation to TEPOs and interim TEPOs
103 Subsection (1) makes provision about TEPOs made on sentencing and any variation or
renewal of such a TEPO These are to be treated as sentences for the purposes of any appeal
104 Subsections (2) (3) and (4) make provision about appeals in relation to TEPOs made on
application any variation or renewal of such a TEPO and interim TEPOs The person in respect
of whom the order was made or the chief constable may appeal against any of these orders
16
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
Trafficking and exploitation risk orders
Section 22 Risk orders
105 Section 22 provides that the chief constable may apply to a sheriff for a trafficking and
exploitation risk order (TERO) against an adult A TERO differs from a TEPO in that it may be
made where a person has not previously been convicted of a trafficking or exploitation offence
but the personrsquos behaviour indicates a risk that others may be at harm as a result of that person
committing such an offence and intervention at an early stage is necessary to prevent that harm
A TEPO can only be made where a relevant offence has already been committed
106 Subsection (2) sets out the appropriate sheriff to whom an application for such an order
may be made
107 Subsection (3) sets out the tests for making a TERO The sheriff may only make an order
if satisfied that the person in respect of whom the order is sought has acted in a way which
means that there is a risk the person may commit a relevant trafficking or exploitation offence
(subsection (3)(a)) and it is necessary to make the prohibitions or requirements in the order for
the purpose of protecting persons generally or particular persons from the physical or
psychological harm which would be likely to occur if the person committed such an offence
(subsection (3)(b))
108 Subsection (4) provides that in assessing those tests the sheriff may consider conduct
which occurred before this section comes into force
Section 23 Contents of risk orders
109 Section 23 makes provision about the prohibitions or requirements (or both) that may be
contained in a TERO Each prohibition and requirement in a TERO is for a fixed period and the
order itself is for a fixed period The orders and the prohibitions or requirements may all be for
the same period However the Bill allows some requirements and prohibitions in the order to be
set for a shorter period if that is appropriate
110 Subsection (2) provides that both the order and any prohibition or requirement in the
order must have a specified fixed period of at least two years However this does not apply to a
prohibition on foreign travel or to an order that contains a prohibition on foreign travel and no
other prohibitions or requirements Such a prohibition (or an order containing only such a
prohibition) must be for a fixed period of no more than five years under section 24(1))
111 Subsection (4) provides that a TERO may prohibit the person in respect of whom the
order is made from doing things or require that person to do things Different prohibitions and
requirements may have effect for different periods
112 Subsection (5) provides that if the sheriff makes a TERO in relation to a person already
subject to such an order the earlier order will cease to have effect
17
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
Section 24 Prohibitions on foreign travel
113 Section 24 makes provision about prohibitions on foreign travel contained in a TERO
114 As noted above subsection (1) provides that a prohibition on foreign travel contained in a
TERO and any TERO which contains such a prohibition and no other prohibitions or
requirements must be for a fixed period of not more than five years
115 Subsection (2) defines a ―prohibition on foreign travel as a prohibition on travelling to
countries outwith the UK (either by reference to particular countries or generally)
116 Subsection (3)(a) determines that a prohibition on foreign travel varied or renewed under
section 25 may be varied or renewed for further fixed periods of no more than five years each
time Subsection (3)(b) requires that an order containing only a foreign travel restriction may be
renewed for up to that fixed period
117 Subsection (4) sets out the requirement on a person in respect of whom a TERO has been
made containing a prohibition on foreign travel to all countries outwith the United Kingdom to
surrender at a police station each passport that the person has Subsection (5) provides that any
passport surrendered must be returned as soon as is reasonably practicable after the person
ceases to be subject to a prohibition on foreign travel to all countries outwith the United
Kingdom Circumstances where this subsection would not apply are provided for at subsection
(6) for example where a passport has already been returned to the relevant authority
Section 25 Variation renewal and discharge of risk orders
118 Section 25 makes provision about the variation renewal or discharge of TEROs
119 Subsections (1) to (3) set out general powers in this context The person in respect of
whom the TERO is made or the chief constable may apply to the sheriff for variation renewal or
discharge of a TERO Subsection (3) makes provision about shrieval jurisdiction in this
connection Where the sheriff receives such an application the sheriff may vary renew or
discharge individual prohibitions or requirements or add new prohibitions or requirements
renew the whole order or discharge the whole order
120 Subsection (4) provides that the sheriff must before making an order under this section
give an opportunity to make representations to the person in respect of whom the order is made
and the chief constable Subsection (5) provides that after taking into account any such
representations the sheriff may then make any order the sheriff considers appropriate
121 Subsection (6) sets out the tests the sheriff must consider when deciding whether to vary
renew or discharge TEROs (including by adding new prohibitions or requirements) or any
prohibitions or requirements within them Subsection (6)(a) applies the tests for the making of a
TERO to any variation (including an increase or a relaxation of a requirement or prohibition)
renewal or addition Subsection (6)(b) applies those tests to any discharge of a prohibition or
requirement or of an order
18
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
Section 26 Interim risk orders
122 Section 26 provides that a sheriff may make an interim TERO while the main application
under section 22 is being determined The sheriff may make such an order if the sheriff
considers it just to do so (subsection (1)) and such an order may contain prohibitions or
requirements (or both) in relation to the person in respect of whom the order is to have effect
(subsection (2)) Those prohibitions or requirements may relate to things to be done or not done
in any part of Scotland or anywhere outwith Scotland (subsection (3))
123 Subsection (4) provides that an interim TERO will only have effect for a fixed period
specified in the order and will cease to have effect on the determination of the main application
if that fixed period has not already expired
124 Subsection (5) allows for an application for variation or discharge of an interim TERO
(or a requirement or prohibition in the order) to be made to a sheriff in the sheriffdom of the
sheriff who made the interim order by the person in respect of whom the order was made or the
chief constable (subsection (6))
Section 27 Appeals risk orders
125 Section 27 provides for an appeals process in relation to TEROs and interim TEROs and
any order varying or renewing such a TERO or interim TERO The person in respect of whom
the order was made or the chief constable may appeal against any of these orders
Offences and supplementary provision
Section 28 Offences
126 Section 28 makes provision about breach of TEPOs and TEROs
127 Subsections (1) and (2) provide that a person commits an offence if that person does
anything which the person is prohibited from doing by an order or fails to do anything which the
person is required to do by a TEPO or a TERO or an interim TEPO or TERO
128 Subsection (3) makes provision about penalties in relation to these offences A person
who commits an offence under this section is liable on summary conviction to imprisonment for
a term not exceeding 12 months or a fine not exceeding the statutory minimum (or both) On
conviction on indictment that person is liable to imprisonment for a term not exceeding five
years or a fine (or both)
Section 29 Enforcement of other UK orders
129 Section 29 provides that the Scottish Ministers may modify by regulations the list of
orders at section 28(2) so that a breach of those orders in Scotland constitutes an offence under
section 28(1) The orders which may be added are ―relevant UK orders Those are described in
subsection (2) as orders under the law of England and Wales or Northern Ireland which appear to
the Scottish Ministers to be equivalent or similar to TEPOs TEROs or interim TEPOs or
TEROs
19
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
Section 30 Interpretation of Part 4
130 Section 30 defines certain terms used in Part 4
PART 5 - STRATEGY AND REPORTING
Section 31 Trafficking and exploitation strategy
131 Section 31 places a duty on the Scottish Ministers to prepare a trafficking and
exploitation strategy The strategy under this section is a strategy which sets out such actions
arrangements and outcomes as the Scottish Ministers consider appropriate in relation to the
conduct which constitutes an offence under this Act
132 Subsection (3) lists some of the matters which may be set out in the strategy though that
list is not exhaustive Those matters include for example training and awareness raising in
relation to the detection and prevention of the conduct which constitutes an offence of human
trafficking or an offence under section 4
Section 32 Review and publication of strategy
133 Subsection (1) of section 32 provides that the strategy prepared under section 31 must be
reviewed by the Scottish Ministers every three years Following a review the Scottish Ministers
are required by subsection (2) to prepare a report on the review including an assessment of the
extent to which the strategy has been complied with and may prepare a revised strategy If a
decision is taken following such a review not to prepare a revised strategy the Scottish Ministers
must set out their reasons for that decision
134 Subsection (4) places a duty on the Scottish Ministers to consult with those likely to have
an interest in the strategy before preparing or reviewing the strategy Those likely to have an
interest include but are not limited to businesses support agencies faith based groups etc
135 Subsection (5) requires the Scottish Ministers to publish and lay before the Scottish
Parliament each strategy and report prepared under this section
Section 33 Duty to co-operate on strategy
136 Section 33 provides that Scottish public authorities as specified in regulations that may
be made by the Scottish Ministers must provide such information and assistance as the Scottish
Ministers may reasonably require and otherwise co-operate with the Scottish Ministers in the
preparation or review of the strategy A specified public authority could include for example
Police Scotland and local authorities
Section 34 Duty to notify and provide information about victims
137 Section 34 places a duty on specified Scottish public authorities to notify the chief
constable of the Police Service of Scotland about a person who is or appears to be a victim of
20
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
an offence under section 1 or section 4 This duty would not affect any other general right to
report information relating to crime
138 Subsection (2) requires that a notification relating to an adult is anonymised and does not
include any information that identifies the adult or enables the adult to be identified unless the
adult consents to that data being provided
139 Subsection (3) provides that the Scottish Ministers may by regulations specify the
Scottish public authorities who are to be subject to this duty and may make provision about the
information to be included in the notification The regulations will be subject to the negative
procedure
PART 6 ndash FINAL PROVISIONS
Section 35 Offences by bodies corporate etc
140 Section 35 provides that where an offence under the Bill was committed by a body
corporate or a Scottish partnership or other unincorporated association and it is proved that the
offence was committed with the consent or connivance of or was attributable to any neglect on
the part of a relevant individual or someone purporting to be acting in the capacity of a relevant
individual that individual as well as the body corporate partnership or unincorporated
association commits the offence and is liable to be proceeded against and punished accordingly
141 Subsection (2) defines what is meant by a ―relevant individual for the purpose of this
section
Section 36 Interpretation
142 Section 36 defines certain terms for the purposes of the Bill for example the definition
of ―travel
Section 37 Regulations
143 The Scottish Ministers are given various powers under this Bill to make regulations
Section 37 provides for the parliamentary procedure which is to be applicable in relation to each
of those powers
Section 38 Ancillary provision
144 Section 38 provides that the Scottish Ministers may make regulations containing such
incidental supplementary consequential transitional transitory or saving provision as they
consider necessary or expedient for the purposes of or in connection with the provisions of the
Bill
21
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
Section 39 Minor and consequential amendments
145 Section 39 introduces the schedule which makes minor amendments and amendments
consequential on the provisions of the Bill Given their replacement in Part 1 of the Bill the
schedule repeals the current offences in relation to human trafficking (section 22 of the 2003 Act
and section 4 of the 2004 Act) and slavery servitude and forced or compulsory labour (section
47 of the 2010 Act)
Section 40 Crown application
146 Section 40(1) provides that none of the provisions made by or under the Act are capable
of making the Crown criminally liable In accordance with subsection (2) enforcement of
offences against the Crown is to be done by the Scottish Ministers or any other public body or
office-holder with responsibility for enforcing the provision applying to the Court of Session for
a civil declarator of non-compliance This provision does not apply to persons in the public
service of the Crown
Section 41 Commencement
147 Section 41 provides that sections 36 37 38 40 41 and 42 of the Bill come into force on
the day after Royal Assent All other provisions are to come into force on a day appointed by
regulations made by the Scottish Ministers
22
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
FINANCIAL MEMORANDUM
INTRODUCTION
1 This document relates to the Human Trafficking and Exploitation (Scotland) Bill (―the
Bill) introduced in the Scottish Parliament on 11 December 2014 It has been prepared by the
Scottish Government to satisfy Rule 932 of the Parliamentrsquos Standing Orders It does not form
part of the Bill and has not been endorsed by the Parliament
2 The purpose of the Bill is to consolidate and strengthen the existing criminal law against
human trafficking and exploitation and enhance the status and support provided to victims Bill
provisions are in the following Partsmdash
Part 1 (Offences) includes provision on the creation of a single offence of human trafficking
for all types of exploitation of both adults and children establishes statutory aggravators of
human trafficking for use with other crimes and reframes the current standalone offence of
slavery servitude and forced or compulsory labour
Part 2 (Protection of victims) includes provision on prosecutorial guidelines for the
prosecution of victims and provision about the support and assistance to which adult victims
are entitled
Part 3 (Confiscation of property) includes provision on detention and forfeiture of property
and proceeds of crime
Part 4 (Trafficking and exploitation prevention and risk orders) includes provision on
two new preventive orders the trafficking and exploitation prevention order and the
trafficking and exploitation risk order
Part 5 (Strategy and reporting) includes provision on the trafficking and exploitation
strategy and the duty on specified Scottish public authorities to notify and provide
information about victims
Part 6 contains general and ancillary provisions
3 This Financial Memorandum considers the financial implications of each of the elements
of the Bill where relevant
BACKGROUND
4 Before considering the financial implications associated with the specific provisions
within the Bill it is important to consider both the current estimated extent of human trafficking
in Scotland and existing activity by public bodies and others in response to this issue
23
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
Extent of human trafficking in Scotland
5 Human trafficking is by its nature a hidden crime The National Referral Mechanism
(NRM) is the process set up by the UK Government to identify and support victims of trafficking
in the UK The NRM is also the mechanism by which the UK Human Trafficking Centre
collects data about potential victims of trafficking Information about suspected child and adult
victims of human trafficking is referred by relevant ―first responder organisations such as the
police and third sector bodies for example Migrant Help and the Trafficking Awareness Raising
Alliance (TARA) Referrals relate to victims trafficked from outside and within the UK The
table below summarises the most recent available information on NRM referrals from first
responder organisations in Scotland
Table 1 Recent referrals from first responders in Scotland of potential child and adult
human trafficking victims to the National Referral Mechanism
2012 2013
Adults 67 77
Children 29 22
Total 96 99
of all UK Referrals 8 6
Source National Crime Agency National Referral Mechanism Statistics 2012 and 20131
6 Various reports confirm that the number of victims referred through the NRM is likely to
be a significant underestimate of the actual number of potential victims of trafficking For
example the Equality and Human Rights Commission Inquiry into Human Trafficking in
Scotland (2011) noted ―estimates of identified potential victims do not reflect what is likely to be
a much greater number of unidentified victims2
7 The UK National Crime Agency (NCA) Strategic Assessment of the Nature and Scale of
Human Trafficking in the UK3 aims to provide an indication of the nature and scale of human
trafficking beyond the number of referrals to the NRM The assessment is produced using
intelligence held by the NCA the NRM and intelligence information collected from agencies
such as Police Scotland the Home Office Gangmastersrsquo Licensing Authority and non-
government organisations The assessment removes information of potential victims referred to
the NRM who have received a negative ―reasonable grounds or ―conclusive decision (ie it
has been confirmed that they are not victims of trafficking) or duplicate information about
individuals (ie the same person has been referred more than once or by more than one agency)
to show a total number of ―unique potential victims of trafficking The NCA Assessment for
2013 indicated that there were significantly more unique potential victims of human trafficking
identified across the UK than the numbers referred to the NRM even excluding those that
received a negative decision and that the number of unique victims was increasing
1 httpwwwnationalcrimeagencygovukpublications399-nca-strategic-assessment-the-nature-and-scale-of-
human-trafficking-in-2013file 2httpwwwequalityhumanrightscomsitesdefaultfilesdocumentsScotlandHuman_Trafficking_in_Scotland_inq
uiry_into_human_trafficking_in_scotland-full-report_pdf_pdf 3 httpwwwnationalcrimeagencygovukpublications399-nca-strategic-assessment-the-nature-and-scale-of-
human-trafficking-in-2013file
24
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
Table 2 Comparison of recent UK referrals to the National Referral Mechanism and the
National Crime Agency Strategic Assessment of the Scale of Human Trafficking
2012 2013 Change
Referred to NRM 778 1095 +41
NCA Assessment No of
Unique Potential Victims
Identified
2255 2744 +22
Source National Crime Agency Strategic Assessment of the Nature and Scale of Human
Trafficking in the UK4
8 For Scotland the NCA Assessment for 2013 identified 55 unique potential victims of
human trafficking compared with 99 referrals to the NRM It is not known why in contrast to
the position in England and Wales the NCA Assessment for Scotland is lower than the NRM
referrals although it will exclude potential victims who received a negative conclusive decision
and duplicate referrals However these numbers must be treated with significant caution There
remains strong conviction amongst law enforcement bodies and victims organisations that there
are more victims of trafficking than are identified and that even once identified victims are
often unwilling to engage with authorities or identify themselves as having been trafficked For
the purpose of this Financial Memorandum the Scottish Government has accepted the NCA
assessment that there are likely to be between two and three times as many potential victims of
trafficking as are currently identified through the NRM This assessment is based on the Scottish
Governmentrsquos best understanding of the hidden nature of this crime and the known reluctance of
some victims to identify their trafficked status or to engage with public authorities
Criminal justice response to human trafficking and exploitation
9 There have been relatively few prosecutions and convictions for human trafficking
offences under existing criminal justice legislationmdash
The Criminal Justice (Scotland) Act 20035 (―the 2003 Act) provides for offences of
trafficking for the purposes of exploitation by way of prostitution
The Asylum and Immigration (Treatment of Claimants etc) Act 20046 (―the 2004
Act) provides for offences of trafficking for labour and other forms of exploitation
The Criminal Justice and Licensing (Scotland) Act 20107 (―the 2010 Act) amended
and extended the 2003 and 2004 Acts and created a standalone offence of holding
someone in slavery or servitude or requiring a person to perform forced or
compulsory labour
10 The first successful convictions for human trafficking in Scotland were in 2011 under
section 22 of the 2003 Act for trafficking for the purposes of prostitution During 2013 a total of
four people were convicted of human trafficking offences - one person under section 22 of the
2003 Act and three people under section 4 of the 2004 Act for trafficking for forced marriage
4 httpwwwnationalcrimeagencygovukpublications399-nca-strategic-assessment-the-nature-and-scale-of-
human-trafficking-in-2013file 5 httpwwwlegislationgovukasp20037
6 httpwwwlegislationgovukukpga200419
7 httpwwwlegislationgovukasp201013
25
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
The average custodial sentence length for those convicted of trafficking offences was 847 days
(just under two years and four months) as well as any confiscation order imposed
11 Although the number of convictions for trafficking offences has been small police and
the Crown Office and Procurator Fiscal Service (COPFS) have confirmed that even though it is
not possible to always prove the trafficking offence where a credible suspicion exists people
suspected of involvement with trafficking can and often are prosecuted and convicted for other
crimes such as crimes associated with prostitution forced marriage immigration offences and
drugs offences etc
12 Police Scotland has established a dedicated National Human Trafficking Unit to enhance
the police response to human trafficking through awareness raising intelligence gathering
training and providing divisions with advice and specialist knowledge The COPFS has
appointed dedicated expert fiscals to prosecute human trafficking offences
Support for victims of trafficking
13 The Scottish Government currently allocates direct grant funding to non-government
organisations to provide and facilitate immediate support and assistance to the adult victims of
human trafficking This support can include immediate safe accommodation psychological
support assistance in accessing medical treatment material assistance interpretation and
translation and assistance either with repatriation or securing longer-term access to mainstream
services and support such as welfare benefits and housing The provision of support and
assistance is not conditional on the potential victim being willing to participate in the criminal
justice process Under the NRM victims of trafficking are guaranteed ―a recovery and reflection
period to recover from their experience escape the influence of those alleged to have trafficked
or exploited them and consider whether to engage with authorities The Council of Europe
Convention on Action Against Trafficking in Human Beings8 provides for a reflection period of
at least 30 days for all trafficked victims when there are reasonable grounds to believe that the
person concerned is a victim The current minimum recovery and reflection period in Scotland
and the rest of the UK is 45 days
14 In 2013-14 total grant funding of pound723000 was provided by the Scottish Government
towards the costs of ensuring immediate support and assistance for the adult victims and
potential victims of trafficking in Scotland This funding was provided through two non-
government organisationsmdash
the TARA Service which works with women aged 18 years and over across
Scotland where there are concerns that they have been trafficked for commercial
sexual exploitation and
Migrant Help a UK-wide organisation providing support and advice services to
migrants including new asylum claimants refugees EU nationals etc
15 Support for the child victims of trafficking is co-ordinated by local authorities as part of
their child protection arrangements and in line with the policy intention that children remain
8 httpwwwcoeinttdghlmonitoringtraffickingdocsconvntnCETS197_enasp
26
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
children first and that their needs should be treated accordingly The Scottish Government has
produced a toolkit for agencies working with children and young people to ensure that staff are
able to identify trafficked children and make appropriate referrals so that victims can receive
protection and support The toolkit is designed to be used in conjunction with National Child
Protection Guidance9 which was first published in 2010 and refreshed in 2014 and other
relevant national and international guidance Information about current expenditure on child
victims of trafficking is not recorded separately from information about wider expenditure on
child protection services
Lord Advocate guidance on prosecution policy
16 In his letter of 21 January 2013 to the Scottish Parliament European and External
Relations Committee10
the Lord Advocate set out the current arrangements for fiscals
considering the prosecution of a confirmed or potential victim of human trafficking where it is
believed or claimed that the crime was committed as a direct consequence of the personrsquos
trafficked status The letter set out the basis for the current Lord Advocatersquos guidance to
prosecutors including the presumption against the prosecution of a credible trafficking victim
for crimes that arise as a consequence of the victimrsquos trafficked status
Human trafficking strategic approach awareness raising and training
17 The first Scottish Human Trafficking Summit was hosted by the Cabinet Secretary for
Justice in October 2012 The summit brought together key law enforcement public private and
third sector organisations with an interest in human trafficking Following the summit a number
of strategic collaborative actions were agreed and progressed including with reference to
awareness raising and training for frontline staff data collection and analysis identification care
and support for both child and adult victims of trafficking and enhancing enforcement
18 One specific workstream related to awareness raising and training of front-line staff
likely to come into contact with trafficking victims or potential instances of trafficking
Following the summit Police Scotland with support from the Scottish Government and others
prepared published and circulated widely an awareness raising leaflet ndash Reading the Signs11
ndash to
assist police officers and staff in other front line posts in identifying the signs of potential
trafficking The Scottish Government also participated with the UK Government in a UK-wide
public awareness raising campaign about modern slavery and trafficking
19 In addition to general awareness raising specific training material was prepared for key
front-line staff For example all police officers were required to undertake an e-learning course
on human trafficking A special leaflet for health workers was prepared and circulated by NHS
Health Scotland An e-learning module for health workers about their role in identifying and
9 httpwwwscotlandgovukPublications2014053052
10httpwwwscottishparliamentukS3_EuropeanandExternalRelationsCommitteeGeneral20DocumentsLetterfro
mTheLordAdvocatepdf 11
httpwwwscotlandpoliceukassetspdf174967human-traffickingview=Standard
27
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
responding to victims of trafficking was made available through the National Gender Based
Violence and Health Programme12
IMPACT OF SPECIFIC PROVISIONS
PART 1 - OFFENCES
Single trafficking offence
20 The Bill establishes a new single offence of human trafficking for all types of
exploitation for both adults and children replacing existing separate criminal offences (see
paragraph 9 above) As noted above to date there have been relatively small numbers of
prosecutions under existing trafficking offences
21 The maximum penalty for conviction on indictment for the single trafficking offence will
be life imprisonment compared with a maximum of 14 years for the current separate offences
Although it will be for the court to decide how to sentence people convicted under the new single
offence in any given case it is likely that the availability of a higher maximum sentence will
have cost implications for the Scottish Prison Service (SPS)
Revised slavery servitude and forced labour offence
22 The Bill will also repeal and replace the existing exploitation offence within section 47 of
the 2010 Act which criminalises holding someone in slavery or servitude or requiring them to
perform compulsory or forced labour The offence will be revised and strengthened to allow the
court to consider in assessing whether a person has been a victim of an offence the victimrsquos
characteristics such as age physical or mental illness disability or where relevant family
relationships The maximum penalty for the offence will be increased from 14 years for the
current offence to life imprisonment for a conviction on indictment
Statutory aggravators
23 The Bill makes provision for statutory aggravators which apply in cases where an
accused person commits an offence connected with human trafficking and for when the offence
is committed in connection with the accusedrsquos position as a public official The court must take
the aggravation into account in determining the appropriate sentence if it is proved that the
offence is aggravated in this way The statutory aggravator is not anticipated to have any
substantial financial implications for public private or third sector bodies or for individuals
Costs on the Scottish Administration
24 Consolidating and clarifying the existing criminal law on trafficking and exploitation
alongside other measures arising from the Bill and the trafficking and exploitation strategy
including training and awareness raising and support for victims should increase the potential
for successful investigations prosecutions and convictions of human trafficking and exploitation
offences There have been six successful prosecutions for a specific trafficking offence to date in
Scotland with an average custodial sentence length of two years and four months against a
12
httpwwwgbvscotnhsuk
28
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
maximum possible sentence of 14 years The maximum number of prosecutions in any one year
was four individuals in two separate cases
25 Police and prosecutors already have in place specialist resources for investigating and
prosecuting human trafficking and exploitation offences and these provisions will not add to
these costs Law enforcement agencies have confirmed that whilst the number of prosecutions
for specific trafficking offences has been low where victims are identified but are unwilling to
testify individuals suspected of trafficking and exploitation will be prosecuted in court for other
related offences The Lord Advocate has identified that ―If we donrsquot have the evidence [to
prosecute for a specific human trafficking offence] we prosecute for fraud ID theft or asylum
and immigration offences13
26 The Scottish Government does not anticipate therefore significant additional cost
implications for law enforcement agencies or courts as cases will often proceed with a
trafficking offence alongside or in place of other related offences For the same reason the
Scottish Government does not anticipate significant additional cost on the Scottish Legal Aid
Board (SLAB) However if it is assumed that the number of successful trials proceeding in any
single year doubles from two to four there would be some additional costs on the COPFS the
Scottish Court Service (SCS) and SLAB based on the average unit costs for cases proceeded
either through Sheriff Court Solemn procedure or through the High Court These estimated costs
depending on whether cases are proceeded through the High Court or Sheriff Court solemn
procedure are illustrated in the table below
Table 3 Estimated unit costs of additional trial procedures through either High Court or
Sheriff Court solemn procedure (pound000)
Average prosecution
costs per procedure
(COPFS)
Average court costs
per procedure (SCS)
Average legal aid
costs per procedure
(SLAB)
Sheriff Court solemn
procedure (pound000) pound49 pound19 pound16
High Court (pound000) pound556 pound90 pound135
Estimated average
costs of 2 additional
trial procedures 4
accused per annum
(pound000)
pound99-pound1112 pound38-pound180 pound64-pound540
Source costs of the Criminal Justice System in Scotland Dataset (2013)14
27 There will also be costs to the SPS both through any increase in the number of successful
convictions for trafficking and exploitation offences and an anticipated increase in the average
length of custodial sentence for these crimes It is not possible to know for certain the total
13
httpwwwdailyrecordcouknewsscottish-newsonly-three-successful-prosecutions-brought-4457684 14httpwwwscotlandgovukTopicsStatisticsBrowseCrimeJusticePublicationscostcrimjustsc
otcostcrimjustdatasethttpwwwscotlandgovukTopicsStatisticsBrowseCrimeJusticePublicationscostcrimj
ustscotcostcrimjustdataset
29
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
number of future convictions or what sentencing decisions might be taken by courts in individual
cases
28 The table below illustrates the potential cost implications of either maintaining or
increasing the current maximum number of convictions in any individual year from four to eight
convictions For the purpose of the calculation it is assumed that the average custodial sentence
length for trafficking and exploitation offences will increase from two years and four months
(classified as a short-term sentence) to over four years (classified as a long-term sentence) as
increasing the maximum sentence to life imprisonment is anticipated to increase the average
sentence for a trafficking offence The estimated average annual cost of a prison place based on
SPS figures is pound42500 Taking account of the current early release arrangements for long-term
prisoners and the overlapping of individual sentences would result in an estimated increase of 8
to 21 total prison places each year after four years ndash ie with an additional four people receiving
custodial sentences each year and released by the Parole Board at the halfway point of their
sentence or automatically at the two-thirds point The total costs to the SPS will be within a
range of pound340000 to pound890000 These costs will fit within the overall budget costs to the SPS
As at 17 October 2014 there were 7731 people in custody in Scotland An additional 21 places
accounts for 03 of the total prison population
Table 4 Estimated range of costs to the Scottish Prison Service from increasing the
number and average length of successful prosecutions for trafficking offences
Year 1 Year 2 Year 3 Year 4
Additional Prison places 0-4 4-12 8-17 8-21
Additional Cost (pound000) pound0-pound170 pound170- pound510 pound340-pound720 pound340-pound890
Table 5 Estimated range of combined costs for trial procedures and prison places
Year 1 Year 2 Year 3 Year 4
Additional Cost (pound000) pound20-pound353 pound190- pound693 pound360-pound900 pound360-pound1073
Costs on other bodies individuals and businesses
29 There will be no new costs falling on other bodies individuals and businesses as a
consequence of these sections but see the section below with reference to victim support
Costs on local authorities
30 There will be no new costs falling on local authorities as a consequence of these specific
sections
PART 2 - PROTECTION OF VICTIMS
Duty on the Lord Advocate to publish guidance about the prosecution of credible trafficking and
exploitation victims who have committed offences
Costs on the Scottish Administration
31 As noted above the Lord Advocate already prepares and publishes guidance to fiscals
about the prosecution of credible victims of human trafficking for crimes committed as a direct
30
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
consequence of their trafficking status The requirement to publish such guidance would in
future be statutory However there will be no new costs on the Scottish Government or the
COPFS as a consequence of placing the requirement for the Lord Advocate to issue this
guidance on a statutory basis
Costs on other bodies individuals and businesses
32 There will be no new costs falling on other bodies individuals and businesses as a
consequence of these sections
Costs on local authorities
33 There will be no new costs falling on local authorities as a consequence of these sections
Ensure the rights of victims to access and support
34 The Bill will place a statutory duty on the Scottish Ministers to secure the provision of
relevant immediate support and recovery services for adult victims of trafficking subject to an
assessment of need The Bill will specify those victims or potential victims entitled to support
and the minimum time periods during which such services should be provided Specifically the
Bill will require Ministers to provide support and assistance based on each individualrsquos assessed
needs during the recovery and reflection period (currently 45 days) during which the
individualrsquos trafficking status is determined The Bill specifies minimum support and assistance
that should be considered as part of the assessment including access to housing treatment
interpretation services etc The Scottish Ministers have the flexibility to provide support and
assistance outwith the specified reflection and recovery period where this is considered
appropriate
35 As noted above the Scottish Ministers already provide grant funding totalling pound723000
to third sector organisations to assist identified adult potential victims of trafficking Provision of
support to adult victims will be placed on a statutory basis The number of adult potential victims
of trafficking referred through the NRM during 2013 was 77 although not all of these will have
requested assistance or received the full range of support services It is assumed that other
actions arising from the Bill including the single offence and publication of the trafficking and
exploitation strategy will result over time in an increase in identified victims and requests for
assistance and support
Costs on the Scottish Administration
36 The Scottish Government anticipates that improved awareness raising and training of
front-line staff will result in an increase in the number of victims identified over time It is not
possible to know how quickly this improvement will be achieved However between 2012 and
2013 the number of potential identified victims across the UK identified through the NCA
strategic assessment and NRM increased by 22 and 41 respectively Given the need for
awareness raising and training to impact the Scottish Government does not anticipate a similar
scale of increase in the immediate term but the Government considers it reasonable to anticipate
a possible increase of between 10 and 20 per annum in the overall number of requests for
assistance and support each year over the next four years Assuming a similar mix of needs as
31
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
current victims the increased costs to the Scottish Government on top of existing funding
would range between pound290000 to pound580000 per annum by year four
Table 6 Estimated range of costs increases for victim support and assistance (pound000)
Year 1 Year 2 Year 3 Year 4
Additional Cost (pound000) pound0-pound140 pound140-pound280 pound220-pound430 pound290-pound580
Costs on other bodies individuals and businesses
37 There will be no additional costs on other public bodies individuals or businesses
associated with these specific provisions There will be no direct additional costs falling on third
sector organisations as a consequence of the specific provisions It is likely however that all or
part of the additional funding identified above will be directed by the Scottish Government
through relevant third sector organisations with the expertise to provide immediate support and
protection to victims
Costs on local authorities
38 The Bill creates no new legislative requirements for the delivery of childrenrsquos services
recognising that this already exists It is therefore not anticipated that the Bill will result in any
quantifiable additional costs on local authorities or other public bodies as a result of support for
child victims Child victims of trafficking are supported as part of the Getting It Right for Every
Child (GIRFEC) approach any child whether identified as trafficked or not will be assessed on
the basis of its needs It is anticipated that as a consequence of the strategy (for which the Bill
provides) that more children may be identified as trafficked It is noted however that various
reports including most recently the UK Governmentrsquos NRM Review Report15
have found that
children who are already receiving support from relevant authorities in the UK are often not
identified as trafficked victims because of lack of awareness of the referral process It may be
that actions arising from the development of the strategy and dialogue with stakeholders will
give rise to additional activity or costs with reference to child victims of trafficking but these are
not known and cannot be estimated at this time
PART 3 - CONFISCATION OF PROPERTY
39 The Bill will provide police with powers to detain the property such as cars boats etc of
a person arrested for a trafficking offence This power will be exercised at the time of arrest and
is not expected to impose any additional costs on the police or others
Costs on the Scottish Administration
40 There will be no additional costs on the Scottish Government as a result of these
provisions Individuals can apply to the court to have vehicles ships or aircraft released from
detention This will be considered as part of the overall case and will not add to the costs to the
criminal justice system
15
httpsnrmhomeofficegovuk
32
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
Costs on other bodies individuals and businesses
41 There will be no additional costs on other public bodies individuals or businesses
including Police Scotland as a result of these specific provisions
Costs on local authorities
42 There will be no additional costs on local authorities as a result of these specific
provisions
PART 4 - TRAFFICKING AND EXPLOITATION PREVENTION AND RISK ORDERS
Introduce new measures to disrupt and prevent trafficking and exploitation
43 The Bill will introduce two new civil orders and associated interim orders to assist in
preventing trafficking and exploitation Trafficking and Exploitation Prevention Orders (TEPOs)
and Trafficking and Exploitation Risk Orders (TEROs) Where an individual has been convicted
of a trafficking or exploitation offence or an offence with a statutory trafficking aggravator a
TEPO may be imposed by a court where there is a risk that that individual may commit a further
human trafficking offence and it is necessary to make the order to protect people from the
physical or psychological harm which might occur if such an offence were committed The
TEPO will prevent the individual from engaging in activities described in the order Where a
person has not been convicted of a trafficking or exploitation offence but a court considers that
the person presents a significant risk of harm to others through the individual committing a
trafficking or exploitation offence the court can impose a TERO restricting specific activities or
imposing requirements These orders will be civil but breach of an order will constitute a
criminal offence with a maximum penalty of five years in prison available to the court
44 The Bill will categorise the trafficking and exploitation offences as lifestyle offences in
order to automatically trigger provisions within the Proceeds of Crime Act 2002 (―the 2002
Act) The definition of an offence as a ―lifestyle offence allows for proceedings under the
2002 Act to confiscate assets or monies from the individual convicted of the offence
Costs on the Scottish Administration
45 The purpose of TEPOs and TEROs is to prevent criminal activity associated with
trafficking and exploitation from arising There will be some cost implications for law
enforcement organisations which will need to monitor the terms of any order imposed by the
courts However these will be offset by the savings made from being able to intervene at an
early stage of criminality if an order has been breached For the equivalent civil orders within the
UK Modern Slavery Bill the UK Government has estimated potential net savings of between
pound130000 and pound1090000 per annum The Scottish Government has not incorporated any
savings for the purpose of Scottish legislation but expects the costs of implementing TEPOs and
TEROs and detention powers to be at least cost neutral for the Scottish Administration and other
public bodies
33
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
46 The Bill will give courts powers to impose a TEPO at the time of sentencing There will
be no immediate additional costs for the courts or COPFS associated with TEPOs imposed as
part of sentencing The Chief Constable of Police Scotland will also be able to apply to the court
for a TEPO to be imposed on a relevant offender previously convicted of a trafficking offence
There will be costs to Police Scotland in making the application and to the SCS and to SLAB in
considering the application As there have been only six previous convictions for trafficking
offences in Scotland the Scottish Government expects the number of applications for TEPOs for
previous convictions to be small one-off and will not add to the overall costs of the criminal
justice system The Chief Constable of Police Scotland can also apply to the court for a TERO
against an individual where it is considered that that individual is likely to commit a trafficking
offence
47 Looking at the equivalent costs for similar civil orders eg Sexual Offences Prevention
Orders the total costs to the SCS the COPFS and SLAB of applying for a TERO or post-
sentencing TEPO are estimated at between pound1000 and pound6000 per order It is not possible to
know how many TEPOs or TEROs might be applied for but assuming a number half the level of
the estimated maximum number of potential convictions for trafficking offences each year (four
to eight) would give estimated costs of between pound2000 (2 x pound1000) and pound24000 (4 x pound6000)
per annum
48 There will be costs to Police Scotland in monitoring TEPOs and TEROs whether
imposed at the time of sentence or by application but this will sit alongside Police Scotlandrsquos
existing crime prevention and investigative responsibilities and is not expected to add to
manpower costs
49 In addition to the costs of imposing and monitoring TEPOs and TEROs there will be
costs associated with prosecuting a breach of a TEPO or TERO Analysis in England and Wales
indicates that breaches of equivalent Serious Crime Prevention Orders are relatively low
Assuming one breach per annum the total combined costs to the COPFS the SCS and SLAB
would be between pound8400 and pound78100 per annum (see the combined costs for either sheriff
court or High Court procedures set out in Table 3 above) Assuming a maximum sentence of
five years the costs to the SPS for additional prison places would be between pound85000 and
pound127500 per annum (ie the pound42500 average costs of a prison place times either two or three
places depending on whether offenders are released early at the halfway or two-thirds point of
their sentence)
50 It is important to remember however that the purpose of TEPOs and TEROs is to
prevent further trafficking and exploitation offences occurring A TEPO or TERO will only be
imposed where a court considers that there is a credible risk of an individual committing such a
crime Any costs associated with the imposition and breach of TEPOs and TEROs needs to be
offset against the potential costs of prosecutions If each TEPO or TERO prevents the costs of a
conviction for an offence as set out in Part 1 above the costs to the Scottish Administration
would be at least cost neutral in terms of saved court and prison places expenditure
34
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
Costs on other bodies individuals and businesses
51 There will be no costs on other bodies businesses or other individuals as a consequence
of these sections
Costs on local authorities
52 There will be no new costs on local authorities as a consequence of these sections
PART 5 - STRATEGY AND REPORTING
Ensure a strategic cross-agency approach to tackling trafficking
53 The Bill places a duty on the Scottish Ministers to prepare publish and regularly review
and update a trafficking and exploitation strategy to assist in ensuring a co-ordinated and
strategic approach to this issue The provisions place a duty on Ministers to consult with such
organisations and individuals as they consider to have a relevant interest in the issues of human
trafficking and exploitation The Bill places a duty on relevant public bodies to be named in
regulations to assist in the preparation and review of the strategy
54 The Bill will place a duty on relevant public authorities to provide anonymised data about
potential human trafficking and exploitation victims to Police Scotland
Costs on the Scottish Administration
55 Activity arising from these provisions within the Bill will build on the activity and
current resources already committed to this area of work
56 Based on similar activities the estimated additional costs to the Scottish Ministers of
preparing and reviewing a trafficking and exploitation strategy will be approximately pound25000
every three years Alongside the preparation and publication of the strategy the Scottish
Ministers would also propose to support additional awareness raising and training activity to
build on the existing awareness raising and training activity already undertaken by relevant
organisations including the NHS Police Scotland and COPFS Consideration would be given to
how best to co-ordinate these resources alongside existing expenditure and activity For the
purposes of the Financial Memorandum and based on current activity additional costs on top of
existing activity are estimated at approximately pound100000 to pound250000 per annum over the first
four years of the Bill This is based on the best estimated costs of preparing and publishing
publicity and guidance material averaged over a number of years The exact costs will depend
on decisions taken in dialogue with stakeholders as part of the preparation of the strategy
57 The Scottish Government anticipates that the costs to relevant public authorities of
providing anonymised data about potential human trafficking victims to Police Scotland will be
marginal Costs to Police Scotland of collating this data will form part of their existing
intelligence gathering activity
35
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
Costs on other bodies individuals and businesses
58 There will be some costs on other bodies individuals and businesses in engaging with the
Scottish Ministers in the preparation and publication of the Strategy For business and
individuals this will be voluntary depending on their willingness to engage For public bodies
their level of engagement will depend on the relevance of the issue of trafficking and
exploitation to their work and their potential contribution to combating this behaviour Any
additional costs are expected to fit within or sit alongside their existing responsibilities for
example with reference to promoting and ensuring equalities and the application of human
rights obligations
Costs on local authorities
59 There will be costs on local authorities associated with engaging in the preparation and
review of the trafficking and exploitation strategy and in awareness raising and training of front-
line staff The additional costs should be marginal on top of the existing guidance and activity
already in place with reference to the identification and support of potential child victims of
trafficking The aim will be to minimise costs for other front-line local authority staff by
adapting the general awareness raising and training materials described above
SUMMARY
60 The table below provides a summary of the costs of each element of the Bill as described
above
Table 7 Summary table of costs for each aspect of the Bill (pound000)
Year 1 Year 2 Year 3 Year 4
Clarifying amp
Strengthening the
Criminal Law ndash Para 28 pound20-pound353 pound190- pound693 pound360-pound900 pound360-pound1073
Ensure the rights of
victims to access and
support - Para 36 pound70-pound140 pound140-pound280 pound220-pound430 pound290-pound580
Introduce new measures to
disrupt and prevent
trafficking pound016
pound0 pound0 pound0
Ensure a strategic cross
agency approach to
tackling trafficking ndash Para
56 pound125-pound275 pound100-pound250 pound100-pound250 pound125-pound275
TOTAL pound215-pound768 pound430-pound1223 pound680-pound1580 pound775-pound1928
16
The Scottish Government considers that the overall costs are at least cost neutral ndash see paragraphs 45 to 50
36
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December
SCOTTISH GOVERNMENT STATEMENT ON LEGISLATIVE
COMPETENCE
On 11 December 2014 the Cabinet Secretary for Justice (Michael Matheson MSP) made the
following statement
―In my view the provisions of the Human Trafficking and Exploitation (Scotland) Bill
would be within the legislative competence of the Scottish Parliament
mdashmdashmdashmdashmdashmdashmdashmdashmdashmdash
PRESIDING OFFICERrsquoS STATEMENT ON LEGISLATIVE
COMPETENCE
On 11 December 2014 the Presiding Officer (Rt Hon Tricia Marwick MSP) made the following
statement
―In my view the provisions of the Human Trafficking and Exploitation (Scotland) Bill
would be within the legislative competence of the Scottish Parliament
37
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December
SP Bill 57ndashEN Session 4 (2014)
HUMAN TRAFFICKING AND EXPLOITATION
(SCOTLAND) BILL
EXPLANATORY NOTES
(AND OTHER ACCOMPANYING DOCUMENTS)
Parliamentary copyright Scottish Parliamentary Corporate Body
Information on the Scottish Parliamentrsquos copyright policy can be found on the website -
wwwscottishparliamentuk
Produced and published in Scotland on behalf of the Scottish Parliamentary Corporate Body by APS
Group Scotland
ISBN 978-1-78534-569-2
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
the person is the victim of conduct constituting one of a number of listed sexual
offences (or which would constitute such an offence if that conduct occurred in
Scotland)
23 The categories of exploitation related to prostitution and the making of indecent material
are drawn from the existing offence in section 22 of the 2003 Act The category related to other
forms of exploitation in connection with sexual offences is a new development in Scots law
though has some precedent under the Sexual Offences Act 2003 in England and Wales
24 Subsection (6) deals with exploitation relating to the removal of organs etc It provides
that a person is exploited in that context if they are encouraged required or expected to do
anything constituting either an offence under Part 1 of the Human Tissue (Scotland) Act 2006
which deals principally with removal of organs for transplantation or any other offence under
the law of Scotland involving removal of a part of the human body (or anything which would
constitute such an offence were it done it Scotland) This latter category ensures that the
removal of organs or tissue for purposes other than transplantation is caught by the trafficking
offences This covers the removal of body parts for research sacrificial rites consumption etc
For these purposes a part of the body comprises all parts of the body including blood
25 Subsections (7) and (8) make more general provision Subsection (7) establishes that a
person is exploited if force threats or deception are used to induce the person to provide services
or benefits or to enable another person to acquire benefits Subsection (8) provides that a person
is exploited if another person takes advantage of the personrsquos vulnerability to use or attempt to
use the person to provide services or benefits (or to enable another person to acquire benefits)
This will ensure the offence captures those cases where the role of the person being exploited is
entirely passive and where the person is being used as a tool by which others can gain a benefit
of any kind
26 The categories of exploitation in subsections (6) to (8) are derived from section 4 of the
2004 Act
Slavery servitude and forced or compulsory labour
Section 4 Slavery servitude and forced or compulsory labour
27 Section 4 provides for an offence of slavery servitude and forced or compulsory labour
Subsections (1) and (2) provide that a person is guilty of an offence if that person holds another
person in slavery or servitude or requires that other person to perform forced or compulsory
labour in circumstances which show that the first person knows or ought to know that the person
is being so held The offence must be interpreted in accordance with Article 4 of the European
Convention on Human Rights That Article prohibits a person from being held in slavery or
servitude or being required to perform forced or compulsory labour This is currently an offence
under section 47 of the 2010 Act which was created in response to the case of Siliadin v France5
(where the European Court of Human Rights held that there had been a violation of Article 4 in
relation to the holding of an individual in domestic servitude)
5 Application no 7331601 httphudocechrcoeintsitesengpagessearchaspxi=001-69891
6
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
28 Subsection (3) provides that in assessing whether a person has been the victim of the
offence the court is to have regard to any of the alleged victimrsquos characteristics that make the
person more vulnerable than other people Examples of these characteristics include age health
or family relationships
29 Subsection (4) sets out the maximum penalty available on conviction of the offence of
slavery servitude and forced or compulsory labour This is an increase from the current
maximum penalty for the offence under section 47 of the 2010 Act Subsection (4)(a) provides
that on summary conviction of the offence the maximum penalty is imprisonment for a term not
exceeding 12 months a fine not exceeding the statutory maximum or both Subsection (4)(b)
provides that on conviction of the offence on indictment the maximum penalty is imprisonment
for life a fine or both
Aggravation as to human trafficking
Section 5 General aggravation of offence
30 Section 5 makes provision for a statutory aggravation which applies in cases where an
accused commits any other offence and that offence has a connection with a human trafficking
offence Where an indictment or complaint libels or specifies that an offence is aggravated by a
connection with human trafficking activity and it is subsequently proved that the offence is
aggravated in that way the court must state on conviction that the offence is so aggravated
record the conviction in a way which shows that the offence is so aggravated take the
aggravation into account when determining the appropriate sentence and state the extent of any
difference in the sentence in light of the aggravation (or if there is no difference the reasons for
that) (subsections (1) and (5))
31 Subsection (2) sets out the circumstances in which an offence can be regarded to have
been aggravated by a connection with human trafficking This relies on proof that the accused
was motivated in whole or in part by the objective of committing or conspiring to commit the
offence of human trafficking In terms of subsection (3) it is not material to establishing the
aggravation whether or not the offence of human trafficking was actually committed by the
offender or another person
32 Subsection (4) provides clarification that corroboration is not needed to prove that an
offence is aggravated by a connection with human trafficking activity ndash evidence from a single
source is sufficient This is consistent with the existing law in relation to both corroboration and
statutory aggravations This position is under review pending further parliamentary scrutiny of
the Criminal Justice (Scotland) Bill
Section 6 Aggravation involving public official
33 Section 6 makes similar provision about a statutory aggravation which applies in cases
where a public official acting or purporting to act in the course of official duties commits the
offence of human trafficking
34 Subsection (4) sets out the steps the court must take when it is libelled in an indictment or
specified in a complaint that the offence of human trafficking is aggravated by an abuse of a
7
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
public position and proved that the offence is so aggravated These are similar to the steps which
must be taken in relation to the general aggravation in section 5
35 Subsection (5) defines those to be considered as a public official for the purposes of
section 6 while subsection (6) defines the term ―an international organisation for the purposes
of this section
36 Subsection (7) enables the Scottish Ministers to modify by regulations the definition of
who is a public official and the definition of an international organisation Any such regulations
will be subject to the affirmative procedure
PART 2 ndash PROTECTION OF VICTIMS
Prosecution of victims
Section 7 Lord Advocatersquos guidelines on prosecution of victims of offences
37 Section 7 places a duty on the Lord Advocate to prepare and publish guidelines for
prosecutors about the prosecution of suspected or confirmed victims of the offence of human
trafficking and the offence under section 4 of the Bill
38 Subsection (2) sets out that the guidelines must include factors to be taken into account or
steps to be taken when deciding whether to prosecute a person who does an act which constitutes
an offence having been compelled to do so and that the compulsion is directly attributable to the
person being or appearing to be a victim of an offence of human trafficking or as the case may
be under section 4 of the Bill
39 Subsection (3) provides that the Lord Advocate may from time to time revise the
guidelines
Support and assistance for adult victims of human trafficking
Section 8 Duty to secure support and assistance
40 Article 12 of the Council of Europe Convention on Action against Trafficking in Human
Beings6 (―COE Convention) sets out the support and assistance which must be provided for
trafficked victims The UK Government ratified the COE Convention in December 2008 and
Scotland became bound by its terms in April 2009 Currently there is no statutory basis for
potential victims of trafficking to access support and information on the type of support that they
are entitled to Support is currently provided through support agencies with grant funding from
the Scottish Ministers
41 Section 8 places a duty on the Scottish Ministers to secure the provision of support and
assistance for adult victims of human trafficking on an assessment of needs during a defined
period It also sets out a discretionary power for the Scottish Ministers to arrange the provision
of support and assistance outwith the mandatory period
6 httpconventionscoeintTreatyenTreatiesHtml197htm
8
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
42 Subsection (1) provides that where there are reasonable grounds to believe that an adult is
a victim of human trafficking the Scottish Ministers must secure the provision of such support
and assistance as is necessary given the adultrsquos needs for the relevant period
43 Subsection (2) defines the relevant period It begins on the day it is determined there are
reasonable grounds to believe that the adult is a victim of human trafficking (paragraph (a)) and
ends on the earlier of either the end of a period specified in regulations made by the Scottish
Ministers (paragraph (b)(i)) or the date on which there is a conclusive determination that the
adult is or is not a victim of a human trafficking offence (paragraph (b)(ii))
44 Subsection (3) gives the Scottish Ministers discretion to provide support and assistance
outwith the mandatory period under subsection (2) The support and assistance may be provided
to the adult during the period when a competent authority is determining whether there are
reasonable grounds to believe that the person is a victim of human trafficking (paragraph (a)) It
may also be provided before the date on which there is a conclusive determination in relation to
the adult if the mandatory period has ended by then (paragraph (b)) or after that conclusive
determination for such period as Ministers think appropriate (paragraph (c))
45 Subsection (4) provides a non-exhaustive list of the kind of support and assistance that
may be provided under section 8 The list provides that support and assistance may be provided
in connection with (but not limited to) the followingmdash
accommodation
day to day living
medical advice and treatment
language translation and interpretation
counselling
legal advice
information about other services available to the adult and
repatriation
46 Subsection (5) provides that the Scottish Ministers must ensure that in securing the
provision of support and assistance assistance is only provided where the adult consents
(subsection (5)(a)) and that the provision of assistance is not made conditional on the adult
assisting with a criminal prosecution or investigation (subsection (5)(b))
47 Subsection (6)(a) describes when there are reasonable grounds to believe that an adult is a
victim of a trafficking offence for the purposes of securing support and assistance Subsection
(6)(b) describes what is meant by a ―conclusive determination that an adult is or is not a victim
of an offence of human trafficking for these purposes
48 Subsection (7) defines what is meant by the terms ―competent authority and ―the
Trafficking Convention for the purposes of this section
9
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
PART 3 - CONFISCATION OF PROPERTY
Detention and forfeiture
Section 9 Detention of vehicle ship or aircraft
49 Section 9 sets out the power of a constable to detain a vehicle ship or aircraft if a person
has been arrested for an offence of human trafficking
50 Subsection (1) describes the circumstances where a police constable may detain a vehicle
ship or aircraft Subsection (1)(a) provides that a constable may detain a vehicle ship or aircraft
if a person has been arrested for an offence of human trafficking and the constable has
reasonable grounds to believe that a forfeiture order would be made if the person arrested were
convicted of the offence (subsection (1)(b))
51 Subsection (2) provides for the duration of the detention of the property Subsection
(2)(a) provides that the vehicle ship or aircraft may be detained until a decision is taken as to
whether or not to begin solemn proceedings against the person arrested for the offence In
circumstances where solemn proceedings have begun the property may be detained until the
person is acquitted (subsection (2)(b)(i)) the person is convicted and a decision is made whether
or not to order forfeiture of the property under section 10 (subsection (2)(b)(ii)) or the
proceedings are otherwise concluded (subsection (2)(b)(iii))
52 Subsections (3) and (4) set out the circumstances in which solemn proceedings are to be
taken to have commenced and concluded for the purposes of this section
53 Subsection (5) lists the circumstances in which a person (including the accused) with a
relevant interest in the detained property may apply to the sheriff for release of the vehicle ship
or aircraft Subsection (6) sets out the sheriffrsquos power to order release subject to satisfactory
security being tendered
54 Subsection (7) provides that the sheriff may impose such other conditions as to the
release of the detained property as the sheriff thinks fit
Section 10 Forfeiture of vehicle ship or aircraft
55 Section 10 sets out the power of the court to order forfeiture of a vehicle ship or aircraft
used or intended to be used in connection with an offence of human trafficking
56 Subsections (1) to (3) provides that forfeiture of a vehicle ship or aircraft used or
intended to be used in connection with the offence of human trafficking may be ordered if a
person convicted on indictment of that offence when the offence was committedmdash
owned the vehicle ship or aircraft
was a director secretary or manager of a company which owned it
was in possession of it under a hire purchase agreement
10
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
was a director secretary or manager of a company which was in possession of it
under a hire purchase agreement
in relation to a vehicle was driving it
in relation to a ship or aircraft was the charterer of it or was acting as captain of it
57 Subsection (4) makes special provision about cases where a ship or aircraft is to be
forfeited but the offender does not own it and was not a director secretary or manager of a
company which owns it It provides that in those circumstances forfeiture of a ship or aircraft
may only be ordered if any one of the tests listed in this subsection is satisfied Subsection (4)(a)
provides that if a person who at the time the offence was committed owned the ship or aircraft
or was a director secretary or manager of a company which owned it knew or ought to have
known of the intention to use it in the course of the commission of the offence of human
trafficking then forfeiture of a ship or aircraft may be ordered Subsection (4)(b) provides that
in the case of a ship (other than a hovercraft) if its gross tonnage is less than 500 then forfeiture
of that ship may be ordered Subsection (4)(c) provides that in the case of an aircraft if the
maximum weight at which it may take off in accordance with its certificate of airworthiness is
less than 5700 kilogrammes then forfeiture of that aircraft may be ordered under this section
Protection is provided for particular categories of owner who due to the size of the ship or
aircraft in question or the circumstances in which it is used for trafficking do not know or
reasonably suspect or are unlikely to know or reasonably suspect that the ship or aircraft is
being used in that way There is a greater likelihood that an owner of a vehicle or smaller types
of ships or aircraft will have actual or constructive knowledge that their property is being or
intended to be used for the purposes of trafficking
58 Subsection (5) provides that forfeiture cannot be ordered without giving any person
claiming an interest in the relevant property the chance to make representations
Proceeds of crime
Section 11 Proceeds of Crime Act 2002 lifestyle offences
59 Section 11 amends Schedule 4 to the Proceeds of Crime Act 2002 (―2002 Act) to
categorise all trafficking and exploitation offences as lifestyle offences for the purposes of that
Act A conviction of a lifestyle offence triggers assumptions under the 2002 Act that the accused
has a criminal lifestyle and that the accusedrsquos property is recoverable as criminal proceeds
60 Section 11(a) amends Schedule 4 to the 2002 Act by substituting paragraph 4 thereof
with a list of all offences related to trafficking and thus categorising all such offences as lifestyle
offences for the purposes of the 2002 Act Section 11(b) amends the same Schedule by inserting
a new paragraph 4A to provide that an offence under section 4 of the Bill also constitutes a
lifestyle offence
11
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
PART 4 ndash TRAFFICKING AND EXPLOITATION PREVENTION AND RISK ORDERS
Trafficking and exploitation offences
Section 12 Relevant trafficking or exploitation offences
61 Section 12 provides a list of the relevant trafficking and exploitation offences for the
purposes of trafficking and exploitation prevention and risk orders made under the Act The list
includes repealed provisions as orders (other than orders on sentencing) may still be made with
reference to convictions under such provisions
62 Subsection (2) provides that the Scottish Ministers may modify by regulations the
offences contained in the list Under section 37(2) any such regulations are subject to the
affirmative procedure
Trafficking and exploitation prevention orders
Section 13 Prevention orders on sentencing
63 Section 13 provides that a court may instead of or in addition to dealing with the person
in any other way make a trafficking and exploitation prevention order (TEPO) on sentencing of
an adult
64 Subsection (1) sets out the three circumstances where the court may make a TEPO
against a person on sentencing The first is conviction of an adult of a relevant trafficking and
exploitation offence The second circumstance is acquittal of such an offence by reason of the
special defence set out in section 51A of the Criminal Procedure (Scotland) Act 1995 (which
provides a defence where a person is unable by reason of mental disorder to appreciate the nature
or wrongfulness of their conduct) The third circumstance is a finding of unfitness for trial in
relation to such an offence under section 53F of that Act (which provides that a person is unfit
for trial if it is established on the balance of probabilities that the person is incapable by reason
of a mental or physical condition of participating effectively in that trial) In relation to the third
circumstance there must also be a finding that the adult has done the act constituting the offence
65 Subsection (3) provides that the court may make a TEPO at its own instance or on the
motion of the prosecutor
66 Subsection (4) provides the test for making a TEPO on sentencing The court must be
satisfied that there is a risk that the person in respect of whom the order is to have effect may
commit another offence mentioned in section 12 and that it is necessary to make the prohibitions
and requirements in the order for the purpose of protecting persons generally or particular
persons from the physical or psychological harm which would be likely to occur if the person
committed such an offence
67 Subsection (5) provides a definition of ―the court for the purposes of this section
12
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
Section 14 Prevention orders on application
68 Section 14 provides that the chief constable may apply to a sheriff for a TEPO against an
adult
69 Subsection (2) sets out the appropriate sheriff to whom such an application should be
made
70 Subsection (3) sets out the tests for making a TEPO on application The sheriff must be
satisfied that the person in respect of whom the order is sought is a ―relevant offender
(subsection (3)(a)) that since the person first became a relevant offender the person has acted in
a way which means that there is a risk the person will commit a relevant trafficking or
exploitation offence (subsection (3)(b)) and it is necessary to make the prohibitions or
requirements in the order for the purpose of protecting persons generally or particular persons
from the physical or psychological harm which would be likely to occur if the person committed
such an offence (subsection (3)(c))
71 Subsection (4) provides that conduct which occurred before this section came into force
may be considered when determining whether there is a risk that a person may commit a relevant
trafficking offence
Section 15 Meaning of relevant offender
72 Section 15 defines what is meant by a ―relevant offender for the purposes of section 14
73 Subsection (2) provides that a person is a relevant offender if any of the court disposals
listed in the subsection have been made in the UK in relation to that person and in respect of a
relevant trafficking or exploitation offence (as set out in section 12 of the Bill)
74 Subsections (3) to (5) deal with findings of courts and tribunals outside the United
Kingdom Subsection (3) provides that a person is a relevant offender if under the law of a
country outside the United Kingdom a listed disposal is made in respect of a person in relation
to an offence which is equivalent to an offence listed in section 12 Subsections (4) and (5) set
out tests for determining whether an offence is equivalent to a relevant offence In particular
such offences are acts which constitute offences under the law of the country concerned and
which would constitute a relevant trafficking or exploitation offence under the law of Scotland if
done in the UK by a UK national or person habitually resident in Scotland or as regards the UK
(eg by virtue of the fact that travel was arranged into out of or within the UK)
75 Subsection (6) establishes a mechanism for determining whether an act constituting an
offence in a country outside the UK would constitute an offence under the law of Scotland
76 Subsection (8) provides that for the purposes of this section convictions acquittals
findings and cautions include those which took place before this section comes into force
13
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
Section 16 Contents of prevention orders
77 Section 16 makes provision about the prohibitions or requirements (or both) that may be
contained in a TEPO Each prohibition and requirement in a TEPO is for a fixed period and the
order itself is for a fixed period The order and the prohibitions and requirements may all be for
the same period However the Bill allows some requirements and prohibitions in the order to be
set for a period shorter than that of the order if that is appropriate
78 Subsection (2) provides that both the order and any prohibition or requirement in the
order must have a specified fixed period of at least five years The only exception to that
requirement relates to a prohibition on foreign travel and an order containing only a prohibition
on foreign travel (which is dealt with in section 17) and relates to a period of not more than five
years Subsection (4) provides that a TEPO may prohibit the person in respect of whom the
order is made from doing things or require that person to do things Different prohibitions and
requirements may have effect for different periods
79 Subsection (5) provides that if the court makes a TEPO in respect of a person already
subject to such an order the earlier order will cease to have effect
80 Subsection (6) defines what is meant by ―the court for the purposes of the section
Section 17 Prohibitions on foreign travel
81 Section 17 makes provision about prohibitions on foreign travel in TEPOs
82 Subsection (1) provides that a prohibition on foreign travel contained in a TEPO and
any TEPO which contains such a prohibition and no other prohibitions or requirements must be
for a fixed period of not more than five years
83 Subsection (2) defines a prohibition on foreign travel as a prohibition on travelling to
countries outside the UK (either by reference to particular countries or generally)
84 Subsection (3)(a) determines that a prohibition on foreign travel varied or renewed by
application under section 18 or 19 may be varied or renewed for further fixed periods of no more
than five years each time Subsection (3)(b) requires that an order containing only a foreign
travel restriction may be renewed for up to that fixed period
85 Subsection (4) sets out the requirement on a person in respect of whom a TEPO
containing a prohibition on foreign travel to all countries outwith the United Kingdom has been
made to surrender at a police station each passport that the person has
86 Subsection (5) provides that any passport surrendered must be returned as soon as is
reasonably practicable after the person ceases to be subject to such a prohibition on foreign
travel Circumstances where this subsection would not apply are provided for at subsection (6)
for example where a passport has already been returned to the relevant authority
14
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
Section 18 Orders on sentencing variation renewal and discharge
87 Section 18 makes provision about varying renewing and discharging TEPOs made on
sentencing
88 Subsections (2) to (4) set out general powers in this context The person in respect of
whom the TEPO is made or the prosecutor may apply for variation renewal or discharge of such
a TEPO That application is to be made to the High Court where that court made the order and
to the sheriff otherwise Subsection (4)(b) makes provision about shrieval jurisdiction in this
connection Where the relevant court receives such an application it may vary renew or
discharge individual prohibitions or requirements or add new prohibitions or requirements it
may renew the whole order or it may discharge the whole order
89 Subsection (5) provides that the court must before making an order under this section
give an opportunity to make representations to the person in respect of whom the order is made
the prosecutor and the chief constable Subsection (6) provides that after taking into account
any such representations the court may then make such order as it thinks appropriate
90 Subsection (7) sets out the tests the court must consider when deciding whether to vary
renew or discharge TEPOs made on sentencing (including by adding new prohibitions or
requirements) or any prohibitions or requirements within them Subsection (7)(a) applies the
tests for the making of a TEPO to any variation (including an increase or a relaxation of a
requirement or prohibition) renewal or addition Subsection (7)(b) applies those tests to any
discharge of a prohibition or requirement or of an order
91 Subsection (8) makes it clear that an order varying or renewing a TEPO is subject to the
requirements and prohibitions established by sections 16 and 17 in the same way as the original
order
92 Subsection (9) defines ―prosecutor for the purposes of this section
Section 19 Orders on application variation renewal and discharge
93 Section 19 makes provision about the variation renewal or discharge of TEPOs made on
application
94 Subsections (2) to (4) set out general powers in this context The person in respect of
whom the TEPO is made or the chief constable may apply to the sheriff for variation renewal or
discharge of a TEPO made on application Subsection (4)(b) makes provision about shrieval
jurisdiction in this connection Where the sheriff receives such an application the sheriff may
vary renew or discharge individual prohibitions or requirements or add new prohibitions or
requirements renew the order so that the period of the order itself is extended or discharge the
whole order
95 Subsection (5) provides that the sheriff must before making an order under this section
give an opportunity to make representations to the person in respect of whom the order is made
15
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
and the chief constable Subsection (6) provides that after taking into account any such
representations the sheriff may then make such an order as the sheriff thinks appropriate
96 Subsection (7) sets out the tests the sheriff must consider when deciding whether to vary
renew or discharge TEPOs on application (including by adding new prohibitions or
requirements) or any prohibitions or requirements within them Those tests reflect the tests for
the making of a TEPO
97 Subsection (8) provides that when determining an application under this section the
sheriff may consider conduct which occurred before this section comes into force
98 Subsection (9) makes it clear that an order varying or renewing a TEPO is subject to the
requirements and prohibitions established by sections 16 and 17 in the same way as the original
order
Section 20 Interim prevention orders
99 Section 20 gives power to a sheriff to make an interim TEPO while the main application
under section 14 is being determined The sheriff may make such an order if the sheriff
considers it just to do so (subsection (1)) and such an order may contain prohibitions or
requirements (or both) in relation to the person in respect of whom the order is to have effect
(subsection (2)) Those prohibitions or requirements may relate to things to be done or not done
in any part of Scotland or anywhere outwith Scotland (subsection (3))
100 Subsection (4) provides that an interim TEPO will only have effect for a fixed period
specified in the order and will cease to have effect on the determination of an application for a
TEPO under section 14 if that fixed period has not expired
101 Subsection (5) allows for an application to a sheriff in the sheriffdom of the sheriff who
made the interim TEPO for variation or discharge of that order Such an application may be
made by the person in respect of whom the order was made or the chief constable
Section 21 Appeals prevention orders
102 Section 21 provides for an appeals process in relation to TEPOs and interim TEPOs
103 Subsection (1) makes provision about TEPOs made on sentencing and any variation or
renewal of such a TEPO These are to be treated as sentences for the purposes of any appeal
104 Subsections (2) (3) and (4) make provision about appeals in relation to TEPOs made on
application any variation or renewal of such a TEPO and interim TEPOs The person in respect
of whom the order was made or the chief constable may appeal against any of these orders
16
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
Trafficking and exploitation risk orders
Section 22 Risk orders
105 Section 22 provides that the chief constable may apply to a sheriff for a trafficking and
exploitation risk order (TERO) against an adult A TERO differs from a TEPO in that it may be
made where a person has not previously been convicted of a trafficking or exploitation offence
but the personrsquos behaviour indicates a risk that others may be at harm as a result of that person
committing such an offence and intervention at an early stage is necessary to prevent that harm
A TEPO can only be made where a relevant offence has already been committed
106 Subsection (2) sets out the appropriate sheriff to whom an application for such an order
may be made
107 Subsection (3) sets out the tests for making a TERO The sheriff may only make an order
if satisfied that the person in respect of whom the order is sought has acted in a way which
means that there is a risk the person may commit a relevant trafficking or exploitation offence
(subsection (3)(a)) and it is necessary to make the prohibitions or requirements in the order for
the purpose of protecting persons generally or particular persons from the physical or
psychological harm which would be likely to occur if the person committed such an offence
(subsection (3)(b))
108 Subsection (4) provides that in assessing those tests the sheriff may consider conduct
which occurred before this section comes into force
Section 23 Contents of risk orders
109 Section 23 makes provision about the prohibitions or requirements (or both) that may be
contained in a TERO Each prohibition and requirement in a TERO is for a fixed period and the
order itself is for a fixed period The orders and the prohibitions or requirements may all be for
the same period However the Bill allows some requirements and prohibitions in the order to be
set for a shorter period if that is appropriate
110 Subsection (2) provides that both the order and any prohibition or requirement in the
order must have a specified fixed period of at least two years However this does not apply to a
prohibition on foreign travel or to an order that contains a prohibition on foreign travel and no
other prohibitions or requirements Such a prohibition (or an order containing only such a
prohibition) must be for a fixed period of no more than five years under section 24(1))
111 Subsection (4) provides that a TERO may prohibit the person in respect of whom the
order is made from doing things or require that person to do things Different prohibitions and
requirements may have effect for different periods
112 Subsection (5) provides that if the sheriff makes a TERO in relation to a person already
subject to such an order the earlier order will cease to have effect
17
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
Section 24 Prohibitions on foreign travel
113 Section 24 makes provision about prohibitions on foreign travel contained in a TERO
114 As noted above subsection (1) provides that a prohibition on foreign travel contained in a
TERO and any TERO which contains such a prohibition and no other prohibitions or
requirements must be for a fixed period of not more than five years
115 Subsection (2) defines a ―prohibition on foreign travel as a prohibition on travelling to
countries outwith the UK (either by reference to particular countries or generally)
116 Subsection (3)(a) determines that a prohibition on foreign travel varied or renewed under
section 25 may be varied or renewed for further fixed periods of no more than five years each
time Subsection (3)(b) requires that an order containing only a foreign travel restriction may be
renewed for up to that fixed period
117 Subsection (4) sets out the requirement on a person in respect of whom a TERO has been
made containing a prohibition on foreign travel to all countries outwith the United Kingdom to
surrender at a police station each passport that the person has Subsection (5) provides that any
passport surrendered must be returned as soon as is reasonably practicable after the person
ceases to be subject to a prohibition on foreign travel to all countries outwith the United
Kingdom Circumstances where this subsection would not apply are provided for at subsection
(6) for example where a passport has already been returned to the relevant authority
Section 25 Variation renewal and discharge of risk orders
118 Section 25 makes provision about the variation renewal or discharge of TEROs
119 Subsections (1) to (3) set out general powers in this context The person in respect of
whom the TERO is made or the chief constable may apply to the sheriff for variation renewal or
discharge of a TERO Subsection (3) makes provision about shrieval jurisdiction in this
connection Where the sheriff receives such an application the sheriff may vary renew or
discharge individual prohibitions or requirements or add new prohibitions or requirements
renew the whole order or discharge the whole order
120 Subsection (4) provides that the sheriff must before making an order under this section
give an opportunity to make representations to the person in respect of whom the order is made
and the chief constable Subsection (5) provides that after taking into account any such
representations the sheriff may then make any order the sheriff considers appropriate
121 Subsection (6) sets out the tests the sheriff must consider when deciding whether to vary
renew or discharge TEROs (including by adding new prohibitions or requirements) or any
prohibitions or requirements within them Subsection (6)(a) applies the tests for the making of a
TERO to any variation (including an increase or a relaxation of a requirement or prohibition)
renewal or addition Subsection (6)(b) applies those tests to any discharge of a prohibition or
requirement or of an order
18
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
Section 26 Interim risk orders
122 Section 26 provides that a sheriff may make an interim TERO while the main application
under section 22 is being determined The sheriff may make such an order if the sheriff
considers it just to do so (subsection (1)) and such an order may contain prohibitions or
requirements (or both) in relation to the person in respect of whom the order is to have effect
(subsection (2)) Those prohibitions or requirements may relate to things to be done or not done
in any part of Scotland or anywhere outwith Scotland (subsection (3))
123 Subsection (4) provides that an interim TERO will only have effect for a fixed period
specified in the order and will cease to have effect on the determination of the main application
if that fixed period has not already expired
124 Subsection (5) allows for an application for variation or discharge of an interim TERO
(or a requirement or prohibition in the order) to be made to a sheriff in the sheriffdom of the
sheriff who made the interim order by the person in respect of whom the order was made or the
chief constable (subsection (6))
Section 27 Appeals risk orders
125 Section 27 provides for an appeals process in relation to TEROs and interim TEROs and
any order varying or renewing such a TERO or interim TERO The person in respect of whom
the order was made or the chief constable may appeal against any of these orders
Offences and supplementary provision
Section 28 Offences
126 Section 28 makes provision about breach of TEPOs and TEROs
127 Subsections (1) and (2) provide that a person commits an offence if that person does
anything which the person is prohibited from doing by an order or fails to do anything which the
person is required to do by a TEPO or a TERO or an interim TEPO or TERO
128 Subsection (3) makes provision about penalties in relation to these offences A person
who commits an offence under this section is liable on summary conviction to imprisonment for
a term not exceeding 12 months or a fine not exceeding the statutory minimum (or both) On
conviction on indictment that person is liable to imprisonment for a term not exceeding five
years or a fine (or both)
Section 29 Enforcement of other UK orders
129 Section 29 provides that the Scottish Ministers may modify by regulations the list of
orders at section 28(2) so that a breach of those orders in Scotland constitutes an offence under
section 28(1) The orders which may be added are ―relevant UK orders Those are described in
subsection (2) as orders under the law of England and Wales or Northern Ireland which appear to
the Scottish Ministers to be equivalent or similar to TEPOs TEROs or interim TEPOs or
TEROs
19
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
Section 30 Interpretation of Part 4
130 Section 30 defines certain terms used in Part 4
PART 5 - STRATEGY AND REPORTING
Section 31 Trafficking and exploitation strategy
131 Section 31 places a duty on the Scottish Ministers to prepare a trafficking and
exploitation strategy The strategy under this section is a strategy which sets out such actions
arrangements and outcomes as the Scottish Ministers consider appropriate in relation to the
conduct which constitutes an offence under this Act
132 Subsection (3) lists some of the matters which may be set out in the strategy though that
list is not exhaustive Those matters include for example training and awareness raising in
relation to the detection and prevention of the conduct which constitutes an offence of human
trafficking or an offence under section 4
Section 32 Review and publication of strategy
133 Subsection (1) of section 32 provides that the strategy prepared under section 31 must be
reviewed by the Scottish Ministers every three years Following a review the Scottish Ministers
are required by subsection (2) to prepare a report on the review including an assessment of the
extent to which the strategy has been complied with and may prepare a revised strategy If a
decision is taken following such a review not to prepare a revised strategy the Scottish Ministers
must set out their reasons for that decision
134 Subsection (4) places a duty on the Scottish Ministers to consult with those likely to have
an interest in the strategy before preparing or reviewing the strategy Those likely to have an
interest include but are not limited to businesses support agencies faith based groups etc
135 Subsection (5) requires the Scottish Ministers to publish and lay before the Scottish
Parliament each strategy and report prepared under this section
Section 33 Duty to co-operate on strategy
136 Section 33 provides that Scottish public authorities as specified in regulations that may
be made by the Scottish Ministers must provide such information and assistance as the Scottish
Ministers may reasonably require and otherwise co-operate with the Scottish Ministers in the
preparation or review of the strategy A specified public authority could include for example
Police Scotland and local authorities
Section 34 Duty to notify and provide information about victims
137 Section 34 places a duty on specified Scottish public authorities to notify the chief
constable of the Police Service of Scotland about a person who is or appears to be a victim of
20
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
an offence under section 1 or section 4 This duty would not affect any other general right to
report information relating to crime
138 Subsection (2) requires that a notification relating to an adult is anonymised and does not
include any information that identifies the adult or enables the adult to be identified unless the
adult consents to that data being provided
139 Subsection (3) provides that the Scottish Ministers may by regulations specify the
Scottish public authorities who are to be subject to this duty and may make provision about the
information to be included in the notification The regulations will be subject to the negative
procedure
PART 6 ndash FINAL PROVISIONS
Section 35 Offences by bodies corporate etc
140 Section 35 provides that where an offence under the Bill was committed by a body
corporate or a Scottish partnership or other unincorporated association and it is proved that the
offence was committed with the consent or connivance of or was attributable to any neglect on
the part of a relevant individual or someone purporting to be acting in the capacity of a relevant
individual that individual as well as the body corporate partnership or unincorporated
association commits the offence and is liable to be proceeded against and punished accordingly
141 Subsection (2) defines what is meant by a ―relevant individual for the purpose of this
section
Section 36 Interpretation
142 Section 36 defines certain terms for the purposes of the Bill for example the definition
of ―travel
Section 37 Regulations
143 The Scottish Ministers are given various powers under this Bill to make regulations
Section 37 provides for the parliamentary procedure which is to be applicable in relation to each
of those powers
Section 38 Ancillary provision
144 Section 38 provides that the Scottish Ministers may make regulations containing such
incidental supplementary consequential transitional transitory or saving provision as they
consider necessary or expedient for the purposes of or in connection with the provisions of the
Bill
21
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
Section 39 Minor and consequential amendments
145 Section 39 introduces the schedule which makes minor amendments and amendments
consequential on the provisions of the Bill Given their replacement in Part 1 of the Bill the
schedule repeals the current offences in relation to human trafficking (section 22 of the 2003 Act
and section 4 of the 2004 Act) and slavery servitude and forced or compulsory labour (section
47 of the 2010 Act)
Section 40 Crown application
146 Section 40(1) provides that none of the provisions made by or under the Act are capable
of making the Crown criminally liable In accordance with subsection (2) enforcement of
offences against the Crown is to be done by the Scottish Ministers or any other public body or
office-holder with responsibility for enforcing the provision applying to the Court of Session for
a civil declarator of non-compliance This provision does not apply to persons in the public
service of the Crown
Section 41 Commencement
147 Section 41 provides that sections 36 37 38 40 41 and 42 of the Bill come into force on
the day after Royal Assent All other provisions are to come into force on a day appointed by
regulations made by the Scottish Ministers
22
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
FINANCIAL MEMORANDUM
INTRODUCTION
1 This document relates to the Human Trafficking and Exploitation (Scotland) Bill (―the
Bill) introduced in the Scottish Parliament on 11 December 2014 It has been prepared by the
Scottish Government to satisfy Rule 932 of the Parliamentrsquos Standing Orders It does not form
part of the Bill and has not been endorsed by the Parliament
2 The purpose of the Bill is to consolidate and strengthen the existing criminal law against
human trafficking and exploitation and enhance the status and support provided to victims Bill
provisions are in the following Partsmdash
Part 1 (Offences) includes provision on the creation of a single offence of human trafficking
for all types of exploitation of both adults and children establishes statutory aggravators of
human trafficking for use with other crimes and reframes the current standalone offence of
slavery servitude and forced or compulsory labour
Part 2 (Protection of victims) includes provision on prosecutorial guidelines for the
prosecution of victims and provision about the support and assistance to which adult victims
are entitled
Part 3 (Confiscation of property) includes provision on detention and forfeiture of property
and proceeds of crime
Part 4 (Trafficking and exploitation prevention and risk orders) includes provision on
two new preventive orders the trafficking and exploitation prevention order and the
trafficking and exploitation risk order
Part 5 (Strategy and reporting) includes provision on the trafficking and exploitation
strategy and the duty on specified Scottish public authorities to notify and provide
information about victims
Part 6 contains general and ancillary provisions
3 This Financial Memorandum considers the financial implications of each of the elements
of the Bill where relevant
BACKGROUND
4 Before considering the financial implications associated with the specific provisions
within the Bill it is important to consider both the current estimated extent of human trafficking
in Scotland and existing activity by public bodies and others in response to this issue
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These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
Extent of human trafficking in Scotland
5 Human trafficking is by its nature a hidden crime The National Referral Mechanism
(NRM) is the process set up by the UK Government to identify and support victims of trafficking
in the UK The NRM is also the mechanism by which the UK Human Trafficking Centre
collects data about potential victims of trafficking Information about suspected child and adult
victims of human trafficking is referred by relevant ―first responder organisations such as the
police and third sector bodies for example Migrant Help and the Trafficking Awareness Raising
Alliance (TARA) Referrals relate to victims trafficked from outside and within the UK The
table below summarises the most recent available information on NRM referrals from first
responder organisations in Scotland
Table 1 Recent referrals from first responders in Scotland of potential child and adult
human trafficking victims to the National Referral Mechanism
2012 2013
Adults 67 77
Children 29 22
Total 96 99
of all UK Referrals 8 6
Source National Crime Agency National Referral Mechanism Statistics 2012 and 20131
6 Various reports confirm that the number of victims referred through the NRM is likely to
be a significant underestimate of the actual number of potential victims of trafficking For
example the Equality and Human Rights Commission Inquiry into Human Trafficking in
Scotland (2011) noted ―estimates of identified potential victims do not reflect what is likely to be
a much greater number of unidentified victims2
7 The UK National Crime Agency (NCA) Strategic Assessment of the Nature and Scale of
Human Trafficking in the UK3 aims to provide an indication of the nature and scale of human
trafficking beyond the number of referrals to the NRM The assessment is produced using
intelligence held by the NCA the NRM and intelligence information collected from agencies
such as Police Scotland the Home Office Gangmastersrsquo Licensing Authority and non-
government organisations The assessment removes information of potential victims referred to
the NRM who have received a negative ―reasonable grounds or ―conclusive decision (ie it
has been confirmed that they are not victims of trafficking) or duplicate information about
individuals (ie the same person has been referred more than once or by more than one agency)
to show a total number of ―unique potential victims of trafficking The NCA Assessment for
2013 indicated that there were significantly more unique potential victims of human trafficking
identified across the UK than the numbers referred to the NRM even excluding those that
received a negative decision and that the number of unique victims was increasing
1 httpwwwnationalcrimeagencygovukpublications399-nca-strategic-assessment-the-nature-and-scale-of-
human-trafficking-in-2013file 2httpwwwequalityhumanrightscomsitesdefaultfilesdocumentsScotlandHuman_Trafficking_in_Scotland_inq
uiry_into_human_trafficking_in_scotland-full-report_pdf_pdf 3 httpwwwnationalcrimeagencygovukpublications399-nca-strategic-assessment-the-nature-and-scale-of-
human-trafficking-in-2013file
24
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
Table 2 Comparison of recent UK referrals to the National Referral Mechanism and the
National Crime Agency Strategic Assessment of the Scale of Human Trafficking
2012 2013 Change
Referred to NRM 778 1095 +41
NCA Assessment No of
Unique Potential Victims
Identified
2255 2744 +22
Source National Crime Agency Strategic Assessment of the Nature and Scale of Human
Trafficking in the UK4
8 For Scotland the NCA Assessment for 2013 identified 55 unique potential victims of
human trafficking compared with 99 referrals to the NRM It is not known why in contrast to
the position in England and Wales the NCA Assessment for Scotland is lower than the NRM
referrals although it will exclude potential victims who received a negative conclusive decision
and duplicate referrals However these numbers must be treated with significant caution There
remains strong conviction amongst law enforcement bodies and victims organisations that there
are more victims of trafficking than are identified and that even once identified victims are
often unwilling to engage with authorities or identify themselves as having been trafficked For
the purpose of this Financial Memorandum the Scottish Government has accepted the NCA
assessment that there are likely to be between two and three times as many potential victims of
trafficking as are currently identified through the NRM This assessment is based on the Scottish
Governmentrsquos best understanding of the hidden nature of this crime and the known reluctance of
some victims to identify their trafficked status or to engage with public authorities
Criminal justice response to human trafficking and exploitation
9 There have been relatively few prosecutions and convictions for human trafficking
offences under existing criminal justice legislationmdash
The Criminal Justice (Scotland) Act 20035 (―the 2003 Act) provides for offences of
trafficking for the purposes of exploitation by way of prostitution
The Asylum and Immigration (Treatment of Claimants etc) Act 20046 (―the 2004
Act) provides for offences of trafficking for labour and other forms of exploitation
The Criminal Justice and Licensing (Scotland) Act 20107 (―the 2010 Act) amended
and extended the 2003 and 2004 Acts and created a standalone offence of holding
someone in slavery or servitude or requiring a person to perform forced or
compulsory labour
10 The first successful convictions for human trafficking in Scotland were in 2011 under
section 22 of the 2003 Act for trafficking for the purposes of prostitution During 2013 a total of
four people were convicted of human trafficking offences - one person under section 22 of the
2003 Act and three people under section 4 of the 2004 Act for trafficking for forced marriage
4 httpwwwnationalcrimeagencygovukpublications399-nca-strategic-assessment-the-nature-and-scale-of-
human-trafficking-in-2013file 5 httpwwwlegislationgovukasp20037
6 httpwwwlegislationgovukukpga200419
7 httpwwwlegislationgovukasp201013
25
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
The average custodial sentence length for those convicted of trafficking offences was 847 days
(just under two years and four months) as well as any confiscation order imposed
11 Although the number of convictions for trafficking offences has been small police and
the Crown Office and Procurator Fiscal Service (COPFS) have confirmed that even though it is
not possible to always prove the trafficking offence where a credible suspicion exists people
suspected of involvement with trafficking can and often are prosecuted and convicted for other
crimes such as crimes associated with prostitution forced marriage immigration offences and
drugs offences etc
12 Police Scotland has established a dedicated National Human Trafficking Unit to enhance
the police response to human trafficking through awareness raising intelligence gathering
training and providing divisions with advice and specialist knowledge The COPFS has
appointed dedicated expert fiscals to prosecute human trafficking offences
Support for victims of trafficking
13 The Scottish Government currently allocates direct grant funding to non-government
organisations to provide and facilitate immediate support and assistance to the adult victims of
human trafficking This support can include immediate safe accommodation psychological
support assistance in accessing medical treatment material assistance interpretation and
translation and assistance either with repatriation or securing longer-term access to mainstream
services and support such as welfare benefits and housing The provision of support and
assistance is not conditional on the potential victim being willing to participate in the criminal
justice process Under the NRM victims of trafficking are guaranteed ―a recovery and reflection
period to recover from their experience escape the influence of those alleged to have trafficked
or exploited them and consider whether to engage with authorities The Council of Europe
Convention on Action Against Trafficking in Human Beings8 provides for a reflection period of
at least 30 days for all trafficked victims when there are reasonable grounds to believe that the
person concerned is a victim The current minimum recovery and reflection period in Scotland
and the rest of the UK is 45 days
14 In 2013-14 total grant funding of pound723000 was provided by the Scottish Government
towards the costs of ensuring immediate support and assistance for the adult victims and
potential victims of trafficking in Scotland This funding was provided through two non-
government organisationsmdash
the TARA Service which works with women aged 18 years and over across
Scotland where there are concerns that they have been trafficked for commercial
sexual exploitation and
Migrant Help a UK-wide organisation providing support and advice services to
migrants including new asylum claimants refugees EU nationals etc
15 Support for the child victims of trafficking is co-ordinated by local authorities as part of
their child protection arrangements and in line with the policy intention that children remain
8 httpwwwcoeinttdghlmonitoringtraffickingdocsconvntnCETS197_enasp
26
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
children first and that their needs should be treated accordingly The Scottish Government has
produced a toolkit for agencies working with children and young people to ensure that staff are
able to identify trafficked children and make appropriate referrals so that victims can receive
protection and support The toolkit is designed to be used in conjunction with National Child
Protection Guidance9 which was first published in 2010 and refreshed in 2014 and other
relevant national and international guidance Information about current expenditure on child
victims of trafficking is not recorded separately from information about wider expenditure on
child protection services
Lord Advocate guidance on prosecution policy
16 In his letter of 21 January 2013 to the Scottish Parliament European and External
Relations Committee10
the Lord Advocate set out the current arrangements for fiscals
considering the prosecution of a confirmed or potential victim of human trafficking where it is
believed or claimed that the crime was committed as a direct consequence of the personrsquos
trafficked status The letter set out the basis for the current Lord Advocatersquos guidance to
prosecutors including the presumption against the prosecution of a credible trafficking victim
for crimes that arise as a consequence of the victimrsquos trafficked status
Human trafficking strategic approach awareness raising and training
17 The first Scottish Human Trafficking Summit was hosted by the Cabinet Secretary for
Justice in October 2012 The summit brought together key law enforcement public private and
third sector organisations with an interest in human trafficking Following the summit a number
of strategic collaborative actions were agreed and progressed including with reference to
awareness raising and training for frontline staff data collection and analysis identification care
and support for both child and adult victims of trafficking and enhancing enforcement
18 One specific workstream related to awareness raising and training of front-line staff
likely to come into contact with trafficking victims or potential instances of trafficking
Following the summit Police Scotland with support from the Scottish Government and others
prepared published and circulated widely an awareness raising leaflet ndash Reading the Signs11
ndash to
assist police officers and staff in other front line posts in identifying the signs of potential
trafficking The Scottish Government also participated with the UK Government in a UK-wide
public awareness raising campaign about modern slavery and trafficking
19 In addition to general awareness raising specific training material was prepared for key
front-line staff For example all police officers were required to undertake an e-learning course
on human trafficking A special leaflet for health workers was prepared and circulated by NHS
Health Scotland An e-learning module for health workers about their role in identifying and
9 httpwwwscotlandgovukPublications2014053052
10httpwwwscottishparliamentukS3_EuropeanandExternalRelationsCommitteeGeneral20DocumentsLetterfro
mTheLordAdvocatepdf 11
httpwwwscotlandpoliceukassetspdf174967human-traffickingview=Standard
27
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
responding to victims of trafficking was made available through the National Gender Based
Violence and Health Programme12
IMPACT OF SPECIFIC PROVISIONS
PART 1 - OFFENCES
Single trafficking offence
20 The Bill establishes a new single offence of human trafficking for all types of
exploitation for both adults and children replacing existing separate criminal offences (see
paragraph 9 above) As noted above to date there have been relatively small numbers of
prosecutions under existing trafficking offences
21 The maximum penalty for conviction on indictment for the single trafficking offence will
be life imprisonment compared with a maximum of 14 years for the current separate offences
Although it will be for the court to decide how to sentence people convicted under the new single
offence in any given case it is likely that the availability of a higher maximum sentence will
have cost implications for the Scottish Prison Service (SPS)
Revised slavery servitude and forced labour offence
22 The Bill will also repeal and replace the existing exploitation offence within section 47 of
the 2010 Act which criminalises holding someone in slavery or servitude or requiring them to
perform compulsory or forced labour The offence will be revised and strengthened to allow the
court to consider in assessing whether a person has been a victim of an offence the victimrsquos
characteristics such as age physical or mental illness disability or where relevant family
relationships The maximum penalty for the offence will be increased from 14 years for the
current offence to life imprisonment for a conviction on indictment
Statutory aggravators
23 The Bill makes provision for statutory aggravators which apply in cases where an
accused person commits an offence connected with human trafficking and for when the offence
is committed in connection with the accusedrsquos position as a public official The court must take
the aggravation into account in determining the appropriate sentence if it is proved that the
offence is aggravated in this way The statutory aggravator is not anticipated to have any
substantial financial implications for public private or third sector bodies or for individuals
Costs on the Scottish Administration
24 Consolidating and clarifying the existing criminal law on trafficking and exploitation
alongside other measures arising from the Bill and the trafficking and exploitation strategy
including training and awareness raising and support for victims should increase the potential
for successful investigations prosecutions and convictions of human trafficking and exploitation
offences There have been six successful prosecutions for a specific trafficking offence to date in
Scotland with an average custodial sentence length of two years and four months against a
12
httpwwwgbvscotnhsuk
28
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
maximum possible sentence of 14 years The maximum number of prosecutions in any one year
was four individuals in two separate cases
25 Police and prosecutors already have in place specialist resources for investigating and
prosecuting human trafficking and exploitation offences and these provisions will not add to
these costs Law enforcement agencies have confirmed that whilst the number of prosecutions
for specific trafficking offences has been low where victims are identified but are unwilling to
testify individuals suspected of trafficking and exploitation will be prosecuted in court for other
related offences The Lord Advocate has identified that ―If we donrsquot have the evidence [to
prosecute for a specific human trafficking offence] we prosecute for fraud ID theft or asylum
and immigration offences13
26 The Scottish Government does not anticipate therefore significant additional cost
implications for law enforcement agencies or courts as cases will often proceed with a
trafficking offence alongside or in place of other related offences For the same reason the
Scottish Government does not anticipate significant additional cost on the Scottish Legal Aid
Board (SLAB) However if it is assumed that the number of successful trials proceeding in any
single year doubles from two to four there would be some additional costs on the COPFS the
Scottish Court Service (SCS) and SLAB based on the average unit costs for cases proceeded
either through Sheriff Court Solemn procedure or through the High Court These estimated costs
depending on whether cases are proceeded through the High Court or Sheriff Court solemn
procedure are illustrated in the table below
Table 3 Estimated unit costs of additional trial procedures through either High Court or
Sheriff Court solemn procedure (pound000)
Average prosecution
costs per procedure
(COPFS)
Average court costs
per procedure (SCS)
Average legal aid
costs per procedure
(SLAB)
Sheriff Court solemn
procedure (pound000) pound49 pound19 pound16
High Court (pound000) pound556 pound90 pound135
Estimated average
costs of 2 additional
trial procedures 4
accused per annum
(pound000)
pound99-pound1112 pound38-pound180 pound64-pound540
Source costs of the Criminal Justice System in Scotland Dataset (2013)14
27 There will also be costs to the SPS both through any increase in the number of successful
convictions for trafficking and exploitation offences and an anticipated increase in the average
length of custodial sentence for these crimes It is not possible to know for certain the total
13
httpwwwdailyrecordcouknewsscottish-newsonly-three-successful-prosecutions-brought-4457684 14httpwwwscotlandgovukTopicsStatisticsBrowseCrimeJusticePublicationscostcrimjustsc
otcostcrimjustdatasethttpwwwscotlandgovukTopicsStatisticsBrowseCrimeJusticePublicationscostcrimj
ustscotcostcrimjustdataset
29
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
number of future convictions or what sentencing decisions might be taken by courts in individual
cases
28 The table below illustrates the potential cost implications of either maintaining or
increasing the current maximum number of convictions in any individual year from four to eight
convictions For the purpose of the calculation it is assumed that the average custodial sentence
length for trafficking and exploitation offences will increase from two years and four months
(classified as a short-term sentence) to over four years (classified as a long-term sentence) as
increasing the maximum sentence to life imprisonment is anticipated to increase the average
sentence for a trafficking offence The estimated average annual cost of a prison place based on
SPS figures is pound42500 Taking account of the current early release arrangements for long-term
prisoners and the overlapping of individual sentences would result in an estimated increase of 8
to 21 total prison places each year after four years ndash ie with an additional four people receiving
custodial sentences each year and released by the Parole Board at the halfway point of their
sentence or automatically at the two-thirds point The total costs to the SPS will be within a
range of pound340000 to pound890000 These costs will fit within the overall budget costs to the SPS
As at 17 October 2014 there were 7731 people in custody in Scotland An additional 21 places
accounts for 03 of the total prison population
Table 4 Estimated range of costs to the Scottish Prison Service from increasing the
number and average length of successful prosecutions for trafficking offences
Year 1 Year 2 Year 3 Year 4
Additional Prison places 0-4 4-12 8-17 8-21
Additional Cost (pound000) pound0-pound170 pound170- pound510 pound340-pound720 pound340-pound890
Table 5 Estimated range of combined costs for trial procedures and prison places
Year 1 Year 2 Year 3 Year 4
Additional Cost (pound000) pound20-pound353 pound190- pound693 pound360-pound900 pound360-pound1073
Costs on other bodies individuals and businesses
29 There will be no new costs falling on other bodies individuals and businesses as a
consequence of these sections but see the section below with reference to victim support
Costs on local authorities
30 There will be no new costs falling on local authorities as a consequence of these specific
sections
PART 2 - PROTECTION OF VICTIMS
Duty on the Lord Advocate to publish guidance about the prosecution of credible trafficking and
exploitation victims who have committed offences
Costs on the Scottish Administration
31 As noted above the Lord Advocate already prepares and publishes guidance to fiscals
about the prosecution of credible victims of human trafficking for crimes committed as a direct
30
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
consequence of their trafficking status The requirement to publish such guidance would in
future be statutory However there will be no new costs on the Scottish Government or the
COPFS as a consequence of placing the requirement for the Lord Advocate to issue this
guidance on a statutory basis
Costs on other bodies individuals and businesses
32 There will be no new costs falling on other bodies individuals and businesses as a
consequence of these sections
Costs on local authorities
33 There will be no new costs falling on local authorities as a consequence of these sections
Ensure the rights of victims to access and support
34 The Bill will place a statutory duty on the Scottish Ministers to secure the provision of
relevant immediate support and recovery services for adult victims of trafficking subject to an
assessment of need The Bill will specify those victims or potential victims entitled to support
and the minimum time periods during which such services should be provided Specifically the
Bill will require Ministers to provide support and assistance based on each individualrsquos assessed
needs during the recovery and reflection period (currently 45 days) during which the
individualrsquos trafficking status is determined The Bill specifies minimum support and assistance
that should be considered as part of the assessment including access to housing treatment
interpretation services etc The Scottish Ministers have the flexibility to provide support and
assistance outwith the specified reflection and recovery period where this is considered
appropriate
35 As noted above the Scottish Ministers already provide grant funding totalling pound723000
to third sector organisations to assist identified adult potential victims of trafficking Provision of
support to adult victims will be placed on a statutory basis The number of adult potential victims
of trafficking referred through the NRM during 2013 was 77 although not all of these will have
requested assistance or received the full range of support services It is assumed that other
actions arising from the Bill including the single offence and publication of the trafficking and
exploitation strategy will result over time in an increase in identified victims and requests for
assistance and support
Costs on the Scottish Administration
36 The Scottish Government anticipates that improved awareness raising and training of
front-line staff will result in an increase in the number of victims identified over time It is not
possible to know how quickly this improvement will be achieved However between 2012 and
2013 the number of potential identified victims across the UK identified through the NCA
strategic assessment and NRM increased by 22 and 41 respectively Given the need for
awareness raising and training to impact the Scottish Government does not anticipate a similar
scale of increase in the immediate term but the Government considers it reasonable to anticipate
a possible increase of between 10 and 20 per annum in the overall number of requests for
assistance and support each year over the next four years Assuming a similar mix of needs as
31
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
current victims the increased costs to the Scottish Government on top of existing funding
would range between pound290000 to pound580000 per annum by year four
Table 6 Estimated range of costs increases for victim support and assistance (pound000)
Year 1 Year 2 Year 3 Year 4
Additional Cost (pound000) pound0-pound140 pound140-pound280 pound220-pound430 pound290-pound580
Costs on other bodies individuals and businesses
37 There will be no additional costs on other public bodies individuals or businesses
associated with these specific provisions There will be no direct additional costs falling on third
sector organisations as a consequence of the specific provisions It is likely however that all or
part of the additional funding identified above will be directed by the Scottish Government
through relevant third sector organisations with the expertise to provide immediate support and
protection to victims
Costs on local authorities
38 The Bill creates no new legislative requirements for the delivery of childrenrsquos services
recognising that this already exists It is therefore not anticipated that the Bill will result in any
quantifiable additional costs on local authorities or other public bodies as a result of support for
child victims Child victims of trafficking are supported as part of the Getting It Right for Every
Child (GIRFEC) approach any child whether identified as trafficked or not will be assessed on
the basis of its needs It is anticipated that as a consequence of the strategy (for which the Bill
provides) that more children may be identified as trafficked It is noted however that various
reports including most recently the UK Governmentrsquos NRM Review Report15
have found that
children who are already receiving support from relevant authorities in the UK are often not
identified as trafficked victims because of lack of awareness of the referral process It may be
that actions arising from the development of the strategy and dialogue with stakeholders will
give rise to additional activity or costs with reference to child victims of trafficking but these are
not known and cannot be estimated at this time
PART 3 - CONFISCATION OF PROPERTY
39 The Bill will provide police with powers to detain the property such as cars boats etc of
a person arrested for a trafficking offence This power will be exercised at the time of arrest and
is not expected to impose any additional costs on the police or others
Costs on the Scottish Administration
40 There will be no additional costs on the Scottish Government as a result of these
provisions Individuals can apply to the court to have vehicles ships or aircraft released from
detention This will be considered as part of the overall case and will not add to the costs to the
criminal justice system
15
httpsnrmhomeofficegovuk
32
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
Costs on other bodies individuals and businesses
41 There will be no additional costs on other public bodies individuals or businesses
including Police Scotland as a result of these specific provisions
Costs on local authorities
42 There will be no additional costs on local authorities as a result of these specific
provisions
PART 4 - TRAFFICKING AND EXPLOITATION PREVENTION AND RISK ORDERS
Introduce new measures to disrupt and prevent trafficking and exploitation
43 The Bill will introduce two new civil orders and associated interim orders to assist in
preventing trafficking and exploitation Trafficking and Exploitation Prevention Orders (TEPOs)
and Trafficking and Exploitation Risk Orders (TEROs) Where an individual has been convicted
of a trafficking or exploitation offence or an offence with a statutory trafficking aggravator a
TEPO may be imposed by a court where there is a risk that that individual may commit a further
human trafficking offence and it is necessary to make the order to protect people from the
physical or psychological harm which might occur if such an offence were committed The
TEPO will prevent the individual from engaging in activities described in the order Where a
person has not been convicted of a trafficking or exploitation offence but a court considers that
the person presents a significant risk of harm to others through the individual committing a
trafficking or exploitation offence the court can impose a TERO restricting specific activities or
imposing requirements These orders will be civil but breach of an order will constitute a
criminal offence with a maximum penalty of five years in prison available to the court
44 The Bill will categorise the trafficking and exploitation offences as lifestyle offences in
order to automatically trigger provisions within the Proceeds of Crime Act 2002 (―the 2002
Act) The definition of an offence as a ―lifestyle offence allows for proceedings under the
2002 Act to confiscate assets or monies from the individual convicted of the offence
Costs on the Scottish Administration
45 The purpose of TEPOs and TEROs is to prevent criminal activity associated with
trafficking and exploitation from arising There will be some cost implications for law
enforcement organisations which will need to monitor the terms of any order imposed by the
courts However these will be offset by the savings made from being able to intervene at an
early stage of criminality if an order has been breached For the equivalent civil orders within the
UK Modern Slavery Bill the UK Government has estimated potential net savings of between
pound130000 and pound1090000 per annum The Scottish Government has not incorporated any
savings for the purpose of Scottish legislation but expects the costs of implementing TEPOs and
TEROs and detention powers to be at least cost neutral for the Scottish Administration and other
public bodies
33
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
46 The Bill will give courts powers to impose a TEPO at the time of sentencing There will
be no immediate additional costs for the courts or COPFS associated with TEPOs imposed as
part of sentencing The Chief Constable of Police Scotland will also be able to apply to the court
for a TEPO to be imposed on a relevant offender previously convicted of a trafficking offence
There will be costs to Police Scotland in making the application and to the SCS and to SLAB in
considering the application As there have been only six previous convictions for trafficking
offences in Scotland the Scottish Government expects the number of applications for TEPOs for
previous convictions to be small one-off and will not add to the overall costs of the criminal
justice system The Chief Constable of Police Scotland can also apply to the court for a TERO
against an individual where it is considered that that individual is likely to commit a trafficking
offence
47 Looking at the equivalent costs for similar civil orders eg Sexual Offences Prevention
Orders the total costs to the SCS the COPFS and SLAB of applying for a TERO or post-
sentencing TEPO are estimated at between pound1000 and pound6000 per order It is not possible to
know how many TEPOs or TEROs might be applied for but assuming a number half the level of
the estimated maximum number of potential convictions for trafficking offences each year (four
to eight) would give estimated costs of between pound2000 (2 x pound1000) and pound24000 (4 x pound6000)
per annum
48 There will be costs to Police Scotland in monitoring TEPOs and TEROs whether
imposed at the time of sentence or by application but this will sit alongside Police Scotlandrsquos
existing crime prevention and investigative responsibilities and is not expected to add to
manpower costs
49 In addition to the costs of imposing and monitoring TEPOs and TEROs there will be
costs associated with prosecuting a breach of a TEPO or TERO Analysis in England and Wales
indicates that breaches of equivalent Serious Crime Prevention Orders are relatively low
Assuming one breach per annum the total combined costs to the COPFS the SCS and SLAB
would be between pound8400 and pound78100 per annum (see the combined costs for either sheriff
court or High Court procedures set out in Table 3 above) Assuming a maximum sentence of
five years the costs to the SPS for additional prison places would be between pound85000 and
pound127500 per annum (ie the pound42500 average costs of a prison place times either two or three
places depending on whether offenders are released early at the halfway or two-thirds point of
their sentence)
50 It is important to remember however that the purpose of TEPOs and TEROs is to
prevent further trafficking and exploitation offences occurring A TEPO or TERO will only be
imposed where a court considers that there is a credible risk of an individual committing such a
crime Any costs associated with the imposition and breach of TEPOs and TEROs needs to be
offset against the potential costs of prosecutions If each TEPO or TERO prevents the costs of a
conviction for an offence as set out in Part 1 above the costs to the Scottish Administration
would be at least cost neutral in terms of saved court and prison places expenditure
34
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
Costs on other bodies individuals and businesses
51 There will be no costs on other bodies businesses or other individuals as a consequence
of these sections
Costs on local authorities
52 There will be no new costs on local authorities as a consequence of these sections
PART 5 - STRATEGY AND REPORTING
Ensure a strategic cross-agency approach to tackling trafficking
53 The Bill places a duty on the Scottish Ministers to prepare publish and regularly review
and update a trafficking and exploitation strategy to assist in ensuring a co-ordinated and
strategic approach to this issue The provisions place a duty on Ministers to consult with such
organisations and individuals as they consider to have a relevant interest in the issues of human
trafficking and exploitation The Bill places a duty on relevant public bodies to be named in
regulations to assist in the preparation and review of the strategy
54 The Bill will place a duty on relevant public authorities to provide anonymised data about
potential human trafficking and exploitation victims to Police Scotland
Costs on the Scottish Administration
55 Activity arising from these provisions within the Bill will build on the activity and
current resources already committed to this area of work
56 Based on similar activities the estimated additional costs to the Scottish Ministers of
preparing and reviewing a trafficking and exploitation strategy will be approximately pound25000
every three years Alongside the preparation and publication of the strategy the Scottish
Ministers would also propose to support additional awareness raising and training activity to
build on the existing awareness raising and training activity already undertaken by relevant
organisations including the NHS Police Scotland and COPFS Consideration would be given to
how best to co-ordinate these resources alongside existing expenditure and activity For the
purposes of the Financial Memorandum and based on current activity additional costs on top of
existing activity are estimated at approximately pound100000 to pound250000 per annum over the first
four years of the Bill This is based on the best estimated costs of preparing and publishing
publicity and guidance material averaged over a number of years The exact costs will depend
on decisions taken in dialogue with stakeholders as part of the preparation of the strategy
57 The Scottish Government anticipates that the costs to relevant public authorities of
providing anonymised data about potential human trafficking victims to Police Scotland will be
marginal Costs to Police Scotland of collating this data will form part of their existing
intelligence gathering activity
35
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
Costs on other bodies individuals and businesses
58 There will be some costs on other bodies individuals and businesses in engaging with the
Scottish Ministers in the preparation and publication of the Strategy For business and
individuals this will be voluntary depending on their willingness to engage For public bodies
their level of engagement will depend on the relevance of the issue of trafficking and
exploitation to their work and their potential contribution to combating this behaviour Any
additional costs are expected to fit within or sit alongside their existing responsibilities for
example with reference to promoting and ensuring equalities and the application of human
rights obligations
Costs on local authorities
59 There will be costs on local authorities associated with engaging in the preparation and
review of the trafficking and exploitation strategy and in awareness raising and training of front-
line staff The additional costs should be marginal on top of the existing guidance and activity
already in place with reference to the identification and support of potential child victims of
trafficking The aim will be to minimise costs for other front-line local authority staff by
adapting the general awareness raising and training materials described above
SUMMARY
60 The table below provides a summary of the costs of each element of the Bill as described
above
Table 7 Summary table of costs for each aspect of the Bill (pound000)
Year 1 Year 2 Year 3 Year 4
Clarifying amp
Strengthening the
Criminal Law ndash Para 28 pound20-pound353 pound190- pound693 pound360-pound900 pound360-pound1073
Ensure the rights of
victims to access and
support - Para 36 pound70-pound140 pound140-pound280 pound220-pound430 pound290-pound580
Introduce new measures to
disrupt and prevent
trafficking pound016
pound0 pound0 pound0
Ensure a strategic cross
agency approach to
tackling trafficking ndash Para
56 pound125-pound275 pound100-pound250 pound100-pound250 pound125-pound275
TOTAL pound215-pound768 pound430-pound1223 pound680-pound1580 pound775-pound1928
16
The Scottish Government considers that the overall costs are at least cost neutral ndash see paragraphs 45 to 50
36
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December
SCOTTISH GOVERNMENT STATEMENT ON LEGISLATIVE
COMPETENCE
On 11 December 2014 the Cabinet Secretary for Justice (Michael Matheson MSP) made the
following statement
―In my view the provisions of the Human Trafficking and Exploitation (Scotland) Bill
would be within the legislative competence of the Scottish Parliament
mdashmdashmdashmdashmdashmdashmdashmdashmdashmdash
PRESIDING OFFICERrsquoS STATEMENT ON LEGISLATIVE
COMPETENCE
On 11 December 2014 the Presiding Officer (Rt Hon Tricia Marwick MSP) made the following
statement
―In my view the provisions of the Human Trafficking and Exploitation (Scotland) Bill
would be within the legislative competence of the Scottish Parliament
37
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December
SP Bill 57ndashEN Session 4 (2014)
HUMAN TRAFFICKING AND EXPLOITATION
(SCOTLAND) BILL
EXPLANATORY NOTES
(AND OTHER ACCOMPANYING DOCUMENTS)
Parliamentary copyright Scottish Parliamentary Corporate Body
Information on the Scottish Parliamentrsquos copyright policy can be found on the website -
wwwscottishparliamentuk
Produced and published in Scotland on behalf of the Scottish Parliamentary Corporate Body by APS
Group Scotland
ISBN 978-1-78534-569-2
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
28 Subsection (3) provides that in assessing whether a person has been the victim of the
offence the court is to have regard to any of the alleged victimrsquos characteristics that make the
person more vulnerable than other people Examples of these characteristics include age health
or family relationships
29 Subsection (4) sets out the maximum penalty available on conviction of the offence of
slavery servitude and forced or compulsory labour This is an increase from the current
maximum penalty for the offence under section 47 of the 2010 Act Subsection (4)(a) provides
that on summary conviction of the offence the maximum penalty is imprisonment for a term not
exceeding 12 months a fine not exceeding the statutory maximum or both Subsection (4)(b)
provides that on conviction of the offence on indictment the maximum penalty is imprisonment
for life a fine or both
Aggravation as to human trafficking
Section 5 General aggravation of offence
30 Section 5 makes provision for a statutory aggravation which applies in cases where an
accused commits any other offence and that offence has a connection with a human trafficking
offence Where an indictment or complaint libels or specifies that an offence is aggravated by a
connection with human trafficking activity and it is subsequently proved that the offence is
aggravated in that way the court must state on conviction that the offence is so aggravated
record the conviction in a way which shows that the offence is so aggravated take the
aggravation into account when determining the appropriate sentence and state the extent of any
difference in the sentence in light of the aggravation (or if there is no difference the reasons for
that) (subsections (1) and (5))
31 Subsection (2) sets out the circumstances in which an offence can be regarded to have
been aggravated by a connection with human trafficking This relies on proof that the accused
was motivated in whole or in part by the objective of committing or conspiring to commit the
offence of human trafficking In terms of subsection (3) it is not material to establishing the
aggravation whether or not the offence of human trafficking was actually committed by the
offender or another person
32 Subsection (4) provides clarification that corroboration is not needed to prove that an
offence is aggravated by a connection with human trafficking activity ndash evidence from a single
source is sufficient This is consistent with the existing law in relation to both corroboration and
statutory aggravations This position is under review pending further parliamentary scrutiny of
the Criminal Justice (Scotland) Bill
Section 6 Aggravation involving public official
33 Section 6 makes similar provision about a statutory aggravation which applies in cases
where a public official acting or purporting to act in the course of official duties commits the
offence of human trafficking
34 Subsection (4) sets out the steps the court must take when it is libelled in an indictment or
specified in a complaint that the offence of human trafficking is aggravated by an abuse of a
7
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
public position and proved that the offence is so aggravated These are similar to the steps which
must be taken in relation to the general aggravation in section 5
35 Subsection (5) defines those to be considered as a public official for the purposes of
section 6 while subsection (6) defines the term ―an international organisation for the purposes
of this section
36 Subsection (7) enables the Scottish Ministers to modify by regulations the definition of
who is a public official and the definition of an international organisation Any such regulations
will be subject to the affirmative procedure
PART 2 ndash PROTECTION OF VICTIMS
Prosecution of victims
Section 7 Lord Advocatersquos guidelines on prosecution of victims of offences
37 Section 7 places a duty on the Lord Advocate to prepare and publish guidelines for
prosecutors about the prosecution of suspected or confirmed victims of the offence of human
trafficking and the offence under section 4 of the Bill
38 Subsection (2) sets out that the guidelines must include factors to be taken into account or
steps to be taken when deciding whether to prosecute a person who does an act which constitutes
an offence having been compelled to do so and that the compulsion is directly attributable to the
person being or appearing to be a victim of an offence of human trafficking or as the case may
be under section 4 of the Bill
39 Subsection (3) provides that the Lord Advocate may from time to time revise the
guidelines
Support and assistance for adult victims of human trafficking
Section 8 Duty to secure support and assistance
40 Article 12 of the Council of Europe Convention on Action against Trafficking in Human
Beings6 (―COE Convention) sets out the support and assistance which must be provided for
trafficked victims The UK Government ratified the COE Convention in December 2008 and
Scotland became bound by its terms in April 2009 Currently there is no statutory basis for
potential victims of trafficking to access support and information on the type of support that they
are entitled to Support is currently provided through support agencies with grant funding from
the Scottish Ministers
41 Section 8 places a duty on the Scottish Ministers to secure the provision of support and
assistance for adult victims of human trafficking on an assessment of needs during a defined
period It also sets out a discretionary power for the Scottish Ministers to arrange the provision
of support and assistance outwith the mandatory period
6 httpconventionscoeintTreatyenTreatiesHtml197htm
8
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
42 Subsection (1) provides that where there are reasonable grounds to believe that an adult is
a victim of human trafficking the Scottish Ministers must secure the provision of such support
and assistance as is necessary given the adultrsquos needs for the relevant period
43 Subsection (2) defines the relevant period It begins on the day it is determined there are
reasonable grounds to believe that the adult is a victim of human trafficking (paragraph (a)) and
ends on the earlier of either the end of a period specified in regulations made by the Scottish
Ministers (paragraph (b)(i)) or the date on which there is a conclusive determination that the
adult is or is not a victim of a human trafficking offence (paragraph (b)(ii))
44 Subsection (3) gives the Scottish Ministers discretion to provide support and assistance
outwith the mandatory period under subsection (2) The support and assistance may be provided
to the adult during the period when a competent authority is determining whether there are
reasonable grounds to believe that the person is a victim of human trafficking (paragraph (a)) It
may also be provided before the date on which there is a conclusive determination in relation to
the adult if the mandatory period has ended by then (paragraph (b)) or after that conclusive
determination for such period as Ministers think appropriate (paragraph (c))
45 Subsection (4) provides a non-exhaustive list of the kind of support and assistance that
may be provided under section 8 The list provides that support and assistance may be provided
in connection with (but not limited to) the followingmdash
accommodation
day to day living
medical advice and treatment
language translation and interpretation
counselling
legal advice
information about other services available to the adult and
repatriation
46 Subsection (5) provides that the Scottish Ministers must ensure that in securing the
provision of support and assistance assistance is only provided where the adult consents
(subsection (5)(a)) and that the provision of assistance is not made conditional on the adult
assisting with a criminal prosecution or investigation (subsection (5)(b))
47 Subsection (6)(a) describes when there are reasonable grounds to believe that an adult is a
victim of a trafficking offence for the purposes of securing support and assistance Subsection
(6)(b) describes what is meant by a ―conclusive determination that an adult is or is not a victim
of an offence of human trafficking for these purposes
48 Subsection (7) defines what is meant by the terms ―competent authority and ―the
Trafficking Convention for the purposes of this section
9
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
PART 3 - CONFISCATION OF PROPERTY
Detention and forfeiture
Section 9 Detention of vehicle ship or aircraft
49 Section 9 sets out the power of a constable to detain a vehicle ship or aircraft if a person
has been arrested for an offence of human trafficking
50 Subsection (1) describes the circumstances where a police constable may detain a vehicle
ship or aircraft Subsection (1)(a) provides that a constable may detain a vehicle ship or aircraft
if a person has been arrested for an offence of human trafficking and the constable has
reasonable grounds to believe that a forfeiture order would be made if the person arrested were
convicted of the offence (subsection (1)(b))
51 Subsection (2) provides for the duration of the detention of the property Subsection
(2)(a) provides that the vehicle ship or aircraft may be detained until a decision is taken as to
whether or not to begin solemn proceedings against the person arrested for the offence In
circumstances where solemn proceedings have begun the property may be detained until the
person is acquitted (subsection (2)(b)(i)) the person is convicted and a decision is made whether
or not to order forfeiture of the property under section 10 (subsection (2)(b)(ii)) or the
proceedings are otherwise concluded (subsection (2)(b)(iii))
52 Subsections (3) and (4) set out the circumstances in which solemn proceedings are to be
taken to have commenced and concluded for the purposes of this section
53 Subsection (5) lists the circumstances in which a person (including the accused) with a
relevant interest in the detained property may apply to the sheriff for release of the vehicle ship
or aircraft Subsection (6) sets out the sheriffrsquos power to order release subject to satisfactory
security being tendered
54 Subsection (7) provides that the sheriff may impose such other conditions as to the
release of the detained property as the sheriff thinks fit
Section 10 Forfeiture of vehicle ship or aircraft
55 Section 10 sets out the power of the court to order forfeiture of a vehicle ship or aircraft
used or intended to be used in connection with an offence of human trafficking
56 Subsections (1) to (3) provides that forfeiture of a vehicle ship or aircraft used or
intended to be used in connection with the offence of human trafficking may be ordered if a
person convicted on indictment of that offence when the offence was committedmdash
owned the vehicle ship or aircraft
was a director secretary or manager of a company which owned it
was in possession of it under a hire purchase agreement
10
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
was a director secretary or manager of a company which was in possession of it
under a hire purchase agreement
in relation to a vehicle was driving it
in relation to a ship or aircraft was the charterer of it or was acting as captain of it
57 Subsection (4) makes special provision about cases where a ship or aircraft is to be
forfeited but the offender does not own it and was not a director secretary or manager of a
company which owns it It provides that in those circumstances forfeiture of a ship or aircraft
may only be ordered if any one of the tests listed in this subsection is satisfied Subsection (4)(a)
provides that if a person who at the time the offence was committed owned the ship or aircraft
or was a director secretary or manager of a company which owned it knew or ought to have
known of the intention to use it in the course of the commission of the offence of human
trafficking then forfeiture of a ship or aircraft may be ordered Subsection (4)(b) provides that
in the case of a ship (other than a hovercraft) if its gross tonnage is less than 500 then forfeiture
of that ship may be ordered Subsection (4)(c) provides that in the case of an aircraft if the
maximum weight at which it may take off in accordance with its certificate of airworthiness is
less than 5700 kilogrammes then forfeiture of that aircraft may be ordered under this section
Protection is provided for particular categories of owner who due to the size of the ship or
aircraft in question or the circumstances in which it is used for trafficking do not know or
reasonably suspect or are unlikely to know or reasonably suspect that the ship or aircraft is
being used in that way There is a greater likelihood that an owner of a vehicle or smaller types
of ships or aircraft will have actual or constructive knowledge that their property is being or
intended to be used for the purposes of trafficking
58 Subsection (5) provides that forfeiture cannot be ordered without giving any person
claiming an interest in the relevant property the chance to make representations
Proceeds of crime
Section 11 Proceeds of Crime Act 2002 lifestyle offences
59 Section 11 amends Schedule 4 to the Proceeds of Crime Act 2002 (―2002 Act) to
categorise all trafficking and exploitation offences as lifestyle offences for the purposes of that
Act A conviction of a lifestyle offence triggers assumptions under the 2002 Act that the accused
has a criminal lifestyle and that the accusedrsquos property is recoverable as criminal proceeds
60 Section 11(a) amends Schedule 4 to the 2002 Act by substituting paragraph 4 thereof
with a list of all offences related to trafficking and thus categorising all such offences as lifestyle
offences for the purposes of the 2002 Act Section 11(b) amends the same Schedule by inserting
a new paragraph 4A to provide that an offence under section 4 of the Bill also constitutes a
lifestyle offence
11
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
PART 4 ndash TRAFFICKING AND EXPLOITATION PREVENTION AND RISK ORDERS
Trafficking and exploitation offences
Section 12 Relevant trafficking or exploitation offences
61 Section 12 provides a list of the relevant trafficking and exploitation offences for the
purposes of trafficking and exploitation prevention and risk orders made under the Act The list
includes repealed provisions as orders (other than orders on sentencing) may still be made with
reference to convictions under such provisions
62 Subsection (2) provides that the Scottish Ministers may modify by regulations the
offences contained in the list Under section 37(2) any such regulations are subject to the
affirmative procedure
Trafficking and exploitation prevention orders
Section 13 Prevention orders on sentencing
63 Section 13 provides that a court may instead of or in addition to dealing with the person
in any other way make a trafficking and exploitation prevention order (TEPO) on sentencing of
an adult
64 Subsection (1) sets out the three circumstances where the court may make a TEPO
against a person on sentencing The first is conviction of an adult of a relevant trafficking and
exploitation offence The second circumstance is acquittal of such an offence by reason of the
special defence set out in section 51A of the Criminal Procedure (Scotland) Act 1995 (which
provides a defence where a person is unable by reason of mental disorder to appreciate the nature
or wrongfulness of their conduct) The third circumstance is a finding of unfitness for trial in
relation to such an offence under section 53F of that Act (which provides that a person is unfit
for trial if it is established on the balance of probabilities that the person is incapable by reason
of a mental or physical condition of participating effectively in that trial) In relation to the third
circumstance there must also be a finding that the adult has done the act constituting the offence
65 Subsection (3) provides that the court may make a TEPO at its own instance or on the
motion of the prosecutor
66 Subsection (4) provides the test for making a TEPO on sentencing The court must be
satisfied that there is a risk that the person in respect of whom the order is to have effect may
commit another offence mentioned in section 12 and that it is necessary to make the prohibitions
and requirements in the order for the purpose of protecting persons generally or particular
persons from the physical or psychological harm which would be likely to occur if the person
committed such an offence
67 Subsection (5) provides a definition of ―the court for the purposes of this section
12
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
Section 14 Prevention orders on application
68 Section 14 provides that the chief constable may apply to a sheriff for a TEPO against an
adult
69 Subsection (2) sets out the appropriate sheriff to whom such an application should be
made
70 Subsection (3) sets out the tests for making a TEPO on application The sheriff must be
satisfied that the person in respect of whom the order is sought is a ―relevant offender
(subsection (3)(a)) that since the person first became a relevant offender the person has acted in
a way which means that there is a risk the person will commit a relevant trafficking or
exploitation offence (subsection (3)(b)) and it is necessary to make the prohibitions or
requirements in the order for the purpose of protecting persons generally or particular persons
from the physical or psychological harm which would be likely to occur if the person committed
such an offence (subsection (3)(c))
71 Subsection (4) provides that conduct which occurred before this section came into force
may be considered when determining whether there is a risk that a person may commit a relevant
trafficking offence
Section 15 Meaning of relevant offender
72 Section 15 defines what is meant by a ―relevant offender for the purposes of section 14
73 Subsection (2) provides that a person is a relevant offender if any of the court disposals
listed in the subsection have been made in the UK in relation to that person and in respect of a
relevant trafficking or exploitation offence (as set out in section 12 of the Bill)
74 Subsections (3) to (5) deal with findings of courts and tribunals outside the United
Kingdom Subsection (3) provides that a person is a relevant offender if under the law of a
country outside the United Kingdom a listed disposal is made in respect of a person in relation
to an offence which is equivalent to an offence listed in section 12 Subsections (4) and (5) set
out tests for determining whether an offence is equivalent to a relevant offence In particular
such offences are acts which constitute offences under the law of the country concerned and
which would constitute a relevant trafficking or exploitation offence under the law of Scotland if
done in the UK by a UK national or person habitually resident in Scotland or as regards the UK
(eg by virtue of the fact that travel was arranged into out of or within the UK)
75 Subsection (6) establishes a mechanism for determining whether an act constituting an
offence in a country outside the UK would constitute an offence under the law of Scotland
76 Subsection (8) provides that for the purposes of this section convictions acquittals
findings and cautions include those which took place before this section comes into force
13
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
Section 16 Contents of prevention orders
77 Section 16 makes provision about the prohibitions or requirements (or both) that may be
contained in a TEPO Each prohibition and requirement in a TEPO is for a fixed period and the
order itself is for a fixed period The order and the prohibitions and requirements may all be for
the same period However the Bill allows some requirements and prohibitions in the order to be
set for a period shorter than that of the order if that is appropriate
78 Subsection (2) provides that both the order and any prohibition or requirement in the
order must have a specified fixed period of at least five years The only exception to that
requirement relates to a prohibition on foreign travel and an order containing only a prohibition
on foreign travel (which is dealt with in section 17) and relates to a period of not more than five
years Subsection (4) provides that a TEPO may prohibit the person in respect of whom the
order is made from doing things or require that person to do things Different prohibitions and
requirements may have effect for different periods
79 Subsection (5) provides that if the court makes a TEPO in respect of a person already
subject to such an order the earlier order will cease to have effect
80 Subsection (6) defines what is meant by ―the court for the purposes of the section
Section 17 Prohibitions on foreign travel
81 Section 17 makes provision about prohibitions on foreign travel in TEPOs
82 Subsection (1) provides that a prohibition on foreign travel contained in a TEPO and
any TEPO which contains such a prohibition and no other prohibitions or requirements must be
for a fixed period of not more than five years
83 Subsection (2) defines a prohibition on foreign travel as a prohibition on travelling to
countries outside the UK (either by reference to particular countries or generally)
84 Subsection (3)(a) determines that a prohibition on foreign travel varied or renewed by
application under section 18 or 19 may be varied or renewed for further fixed periods of no more
than five years each time Subsection (3)(b) requires that an order containing only a foreign
travel restriction may be renewed for up to that fixed period
85 Subsection (4) sets out the requirement on a person in respect of whom a TEPO
containing a prohibition on foreign travel to all countries outwith the United Kingdom has been
made to surrender at a police station each passport that the person has
86 Subsection (5) provides that any passport surrendered must be returned as soon as is
reasonably practicable after the person ceases to be subject to such a prohibition on foreign
travel Circumstances where this subsection would not apply are provided for at subsection (6)
for example where a passport has already been returned to the relevant authority
14
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
Section 18 Orders on sentencing variation renewal and discharge
87 Section 18 makes provision about varying renewing and discharging TEPOs made on
sentencing
88 Subsections (2) to (4) set out general powers in this context The person in respect of
whom the TEPO is made or the prosecutor may apply for variation renewal or discharge of such
a TEPO That application is to be made to the High Court where that court made the order and
to the sheriff otherwise Subsection (4)(b) makes provision about shrieval jurisdiction in this
connection Where the relevant court receives such an application it may vary renew or
discharge individual prohibitions or requirements or add new prohibitions or requirements it
may renew the whole order or it may discharge the whole order
89 Subsection (5) provides that the court must before making an order under this section
give an opportunity to make representations to the person in respect of whom the order is made
the prosecutor and the chief constable Subsection (6) provides that after taking into account
any such representations the court may then make such order as it thinks appropriate
90 Subsection (7) sets out the tests the court must consider when deciding whether to vary
renew or discharge TEPOs made on sentencing (including by adding new prohibitions or
requirements) or any prohibitions or requirements within them Subsection (7)(a) applies the
tests for the making of a TEPO to any variation (including an increase or a relaxation of a
requirement or prohibition) renewal or addition Subsection (7)(b) applies those tests to any
discharge of a prohibition or requirement or of an order
91 Subsection (8) makes it clear that an order varying or renewing a TEPO is subject to the
requirements and prohibitions established by sections 16 and 17 in the same way as the original
order
92 Subsection (9) defines ―prosecutor for the purposes of this section
Section 19 Orders on application variation renewal and discharge
93 Section 19 makes provision about the variation renewal or discharge of TEPOs made on
application
94 Subsections (2) to (4) set out general powers in this context The person in respect of
whom the TEPO is made or the chief constable may apply to the sheriff for variation renewal or
discharge of a TEPO made on application Subsection (4)(b) makes provision about shrieval
jurisdiction in this connection Where the sheriff receives such an application the sheriff may
vary renew or discharge individual prohibitions or requirements or add new prohibitions or
requirements renew the order so that the period of the order itself is extended or discharge the
whole order
95 Subsection (5) provides that the sheriff must before making an order under this section
give an opportunity to make representations to the person in respect of whom the order is made
15
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
and the chief constable Subsection (6) provides that after taking into account any such
representations the sheriff may then make such an order as the sheriff thinks appropriate
96 Subsection (7) sets out the tests the sheriff must consider when deciding whether to vary
renew or discharge TEPOs on application (including by adding new prohibitions or
requirements) or any prohibitions or requirements within them Those tests reflect the tests for
the making of a TEPO
97 Subsection (8) provides that when determining an application under this section the
sheriff may consider conduct which occurred before this section comes into force
98 Subsection (9) makes it clear that an order varying or renewing a TEPO is subject to the
requirements and prohibitions established by sections 16 and 17 in the same way as the original
order
Section 20 Interim prevention orders
99 Section 20 gives power to a sheriff to make an interim TEPO while the main application
under section 14 is being determined The sheriff may make such an order if the sheriff
considers it just to do so (subsection (1)) and such an order may contain prohibitions or
requirements (or both) in relation to the person in respect of whom the order is to have effect
(subsection (2)) Those prohibitions or requirements may relate to things to be done or not done
in any part of Scotland or anywhere outwith Scotland (subsection (3))
100 Subsection (4) provides that an interim TEPO will only have effect for a fixed period
specified in the order and will cease to have effect on the determination of an application for a
TEPO under section 14 if that fixed period has not expired
101 Subsection (5) allows for an application to a sheriff in the sheriffdom of the sheriff who
made the interim TEPO for variation or discharge of that order Such an application may be
made by the person in respect of whom the order was made or the chief constable
Section 21 Appeals prevention orders
102 Section 21 provides for an appeals process in relation to TEPOs and interim TEPOs
103 Subsection (1) makes provision about TEPOs made on sentencing and any variation or
renewal of such a TEPO These are to be treated as sentences for the purposes of any appeal
104 Subsections (2) (3) and (4) make provision about appeals in relation to TEPOs made on
application any variation or renewal of such a TEPO and interim TEPOs The person in respect
of whom the order was made or the chief constable may appeal against any of these orders
16
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
Trafficking and exploitation risk orders
Section 22 Risk orders
105 Section 22 provides that the chief constable may apply to a sheriff for a trafficking and
exploitation risk order (TERO) against an adult A TERO differs from a TEPO in that it may be
made where a person has not previously been convicted of a trafficking or exploitation offence
but the personrsquos behaviour indicates a risk that others may be at harm as a result of that person
committing such an offence and intervention at an early stage is necessary to prevent that harm
A TEPO can only be made where a relevant offence has already been committed
106 Subsection (2) sets out the appropriate sheriff to whom an application for such an order
may be made
107 Subsection (3) sets out the tests for making a TERO The sheriff may only make an order
if satisfied that the person in respect of whom the order is sought has acted in a way which
means that there is a risk the person may commit a relevant trafficking or exploitation offence
(subsection (3)(a)) and it is necessary to make the prohibitions or requirements in the order for
the purpose of protecting persons generally or particular persons from the physical or
psychological harm which would be likely to occur if the person committed such an offence
(subsection (3)(b))
108 Subsection (4) provides that in assessing those tests the sheriff may consider conduct
which occurred before this section comes into force
Section 23 Contents of risk orders
109 Section 23 makes provision about the prohibitions or requirements (or both) that may be
contained in a TERO Each prohibition and requirement in a TERO is for a fixed period and the
order itself is for a fixed period The orders and the prohibitions or requirements may all be for
the same period However the Bill allows some requirements and prohibitions in the order to be
set for a shorter period if that is appropriate
110 Subsection (2) provides that both the order and any prohibition or requirement in the
order must have a specified fixed period of at least two years However this does not apply to a
prohibition on foreign travel or to an order that contains a prohibition on foreign travel and no
other prohibitions or requirements Such a prohibition (or an order containing only such a
prohibition) must be for a fixed period of no more than five years under section 24(1))
111 Subsection (4) provides that a TERO may prohibit the person in respect of whom the
order is made from doing things or require that person to do things Different prohibitions and
requirements may have effect for different periods
112 Subsection (5) provides that if the sheriff makes a TERO in relation to a person already
subject to such an order the earlier order will cease to have effect
17
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
Section 24 Prohibitions on foreign travel
113 Section 24 makes provision about prohibitions on foreign travel contained in a TERO
114 As noted above subsection (1) provides that a prohibition on foreign travel contained in a
TERO and any TERO which contains such a prohibition and no other prohibitions or
requirements must be for a fixed period of not more than five years
115 Subsection (2) defines a ―prohibition on foreign travel as a prohibition on travelling to
countries outwith the UK (either by reference to particular countries or generally)
116 Subsection (3)(a) determines that a prohibition on foreign travel varied or renewed under
section 25 may be varied or renewed for further fixed periods of no more than five years each
time Subsection (3)(b) requires that an order containing only a foreign travel restriction may be
renewed for up to that fixed period
117 Subsection (4) sets out the requirement on a person in respect of whom a TERO has been
made containing a prohibition on foreign travel to all countries outwith the United Kingdom to
surrender at a police station each passport that the person has Subsection (5) provides that any
passport surrendered must be returned as soon as is reasonably practicable after the person
ceases to be subject to a prohibition on foreign travel to all countries outwith the United
Kingdom Circumstances where this subsection would not apply are provided for at subsection
(6) for example where a passport has already been returned to the relevant authority
Section 25 Variation renewal and discharge of risk orders
118 Section 25 makes provision about the variation renewal or discharge of TEROs
119 Subsections (1) to (3) set out general powers in this context The person in respect of
whom the TERO is made or the chief constable may apply to the sheriff for variation renewal or
discharge of a TERO Subsection (3) makes provision about shrieval jurisdiction in this
connection Where the sheriff receives such an application the sheriff may vary renew or
discharge individual prohibitions or requirements or add new prohibitions or requirements
renew the whole order or discharge the whole order
120 Subsection (4) provides that the sheriff must before making an order under this section
give an opportunity to make representations to the person in respect of whom the order is made
and the chief constable Subsection (5) provides that after taking into account any such
representations the sheriff may then make any order the sheriff considers appropriate
121 Subsection (6) sets out the tests the sheriff must consider when deciding whether to vary
renew or discharge TEROs (including by adding new prohibitions or requirements) or any
prohibitions or requirements within them Subsection (6)(a) applies the tests for the making of a
TERO to any variation (including an increase or a relaxation of a requirement or prohibition)
renewal or addition Subsection (6)(b) applies those tests to any discharge of a prohibition or
requirement or of an order
18
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
Section 26 Interim risk orders
122 Section 26 provides that a sheriff may make an interim TERO while the main application
under section 22 is being determined The sheriff may make such an order if the sheriff
considers it just to do so (subsection (1)) and such an order may contain prohibitions or
requirements (or both) in relation to the person in respect of whom the order is to have effect
(subsection (2)) Those prohibitions or requirements may relate to things to be done or not done
in any part of Scotland or anywhere outwith Scotland (subsection (3))
123 Subsection (4) provides that an interim TERO will only have effect for a fixed period
specified in the order and will cease to have effect on the determination of the main application
if that fixed period has not already expired
124 Subsection (5) allows for an application for variation or discharge of an interim TERO
(or a requirement or prohibition in the order) to be made to a sheriff in the sheriffdom of the
sheriff who made the interim order by the person in respect of whom the order was made or the
chief constable (subsection (6))
Section 27 Appeals risk orders
125 Section 27 provides for an appeals process in relation to TEROs and interim TEROs and
any order varying or renewing such a TERO or interim TERO The person in respect of whom
the order was made or the chief constable may appeal against any of these orders
Offences and supplementary provision
Section 28 Offences
126 Section 28 makes provision about breach of TEPOs and TEROs
127 Subsections (1) and (2) provide that a person commits an offence if that person does
anything which the person is prohibited from doing by an order or fails to do anything which the
person is required to do by a TEPO or a TERO or an interim TEPO or TERO
128 Subsection (3) makes provision about penalties in relation to these offences A person
who commits an offence under this section is liable on summary conviction to imprisonment for
a term not exceeding 12 months or a fine not exceeding the statutory minimum (or both) On
conviction on indictment that person is liable to imprisonment for a term not exceeding five
years or a fine (or both)
Section 29 Enforcement of other UK orders
129 Section 29 provides that the Scottish Ministers may modify by regulations the list of
orders at section 28(2) so that a breach of those orders in Scotland constitutes an offence under
section 28(1) The orders which may be added are ―relevant UK orders Those are described in
subsection (2) as orders under the law of England and Wales or Northern Ireland which appear to
the Scottish Ministers to be equivalent or similar to TEPOs TEROs or interim TEPOs or
TEROs
19
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
Section 30 Interpretation of Part 4
130 Section 30 defines certain terms used in Part 4
PART 5 - STRATEGY AND REPORTING
Section 31 Trafficking and exploitation strategy
131 Section 31 places a duty on the Scottish Ministers to prepare a trafficking and
exploitation strategy The strategy under this section is a strategy which sets out such actions
arrangements and outcomes as the Scottish Ministers consider appropriate in relation to the
conduct which constitutes an offence under this Act
132 Subsection (3) lists some of the matters which may be set out in the strategy though that
list is not exhaustive Those matters include for example training and awareness raising in
relation to the detection and prevention of the conduct which constitutes an offence of human
trafficking or an offence under section 4
Section 32 Review and publication of strategy
133 Subsection (1) of section 32 provides that the strategy prepared under section 31 must be
reviewed by the Scottish Ministers every three years Following a review the Scottish Ministers
are required by subsection (2) to prepare a report on the review including an assessment of the
extent to which the strategy has been complied with and may prepare a revised strategy If a
decision is taken following such a review not to prepare a revised strategy the Scottish Ministers
must set out their reasons for that decision
134 Subsection (4) places a duty on the Scottish Ministers to consult with those likely to have
an interest in the strategy before preparing or reviewing the strategy Those likely to have an
interest include but are not limited to businesses support agencies faith based groups etc
135 Subsection (5) requires the Scottish Ministers to publish and lay before the Scottish
Parliament each strategy and report prepared under this section
Section 33 Duty to co-operate on strategy
136 Section 33 provides that Scottish public authorities as specified in regulations that may
be made by the Scottish Ministers must provide such information and assistance as the Scottish
Ministers may reasonably require and otherwise co-operate with the Scottish Ministers in the
preparation or review of the strategy A specified public authority could include for example
Police Scotland and local authorities
Section 34 Duty to notify and provide information about victims
137 Section 34 places a duty on specified Scottish public authorities to notify the chief
constable of the Police Service of Scotland about a person who is or appears to be a victim of
20
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
an offence under section 1 or section 4 This duty would not affect any other general right to
report information relating to crime
138 Subsection (2) requires that a notification relating to an adult is anonymised and does not
include any information that identifies the adult or enables the adult to be identified unless the
adult consents to that data being provided
139 Subsection (3) provides that the Scottish Ministers may by regulations specify the
Scottish public authorities who are to be subject to this duty and may make provision about the
information to be included in the notification The regulations will be subject to the negative
procedure
PART 6 ndash FINAL PROVISIONS
Section 35 Offences by bodies corporate etc
140 Section 35 provides that where an offence under the Bill was committed by a body
corporate or a Scottish partnership or other unincorporated association and it is proved that the
offence was committed with the consent or connivance of or was attributable to any neglect on
the part of a relevant individual or someone purporting to be acting in the capacity of a relevant
individual that individual as well as the body corporate partnership or unincorporated
association commits the offence and is liable to be proceeded against and punished accordingly
141 Subsection (2) defines what is meant by a ―relevant individual for the purpose of this
section
Section 36 Interpretation
142 Section 36 defines certain terms for the purposes of the Bill for example the definition
of ―travel
Section 37 Regulations
143 The Scottish Ministers are given various powers under this Bill to make regulations
Section 37 provides for the parliamentary procedure which is to be applicable in relation to each
of those powers
Section 38 Ancillary provision
144 Section 38 provides that the Scottish Ministers may make regulations containing such
incidental supplementary consequential transitional transitory or saving provision as they
consider necessary or expedient for the purposes of or in connection with the provisions of the
Bill
21
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
Section 39 Minor and consequential amendments
145 Section 39 introduces the schedule which makes minor amendments and amendments
consequential on the provisions of the Bill Given their replacement in Part 1 of the Bill the
schedule repeals the current offences in relation to human trafficking (section 22 of the 2003 Act
and section 4 of the 2004 Act) and slavery servitude and forced or compulsory labour (section
47 of the 2010 Act)
Section 40 Crown application
146 Section 40(1) provides that none of the provisions made by or under the Act are capable
of making the Crown criminally liable In accordance with subsection (2) enforcement of
offences against the Crown is to be done by the Scottish Ministers or any other public body or
office-holder with responsibility for enforcing the provision applying to the Court of Session for
a civil declarator of non-compliance This provision does not apply to persons in the public
service of the Crown
Section 41 Commencement
147 Section 41 provides that sections 36 37 38 40 41 and 42 of the Bill come into force on
the day after Royal Assent All other provisions are to come into force on a day appointed by
regulations made by the Scottish Ministers
22
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
FINANCIAL MEMORANDUM
INTRODUCTION
1 This document relates to the Human Trafficking and Exploitation (Scotland) Bill (―the
Bill) introduced in the Scottish Parliament on 11 December 2014 It has been prepared by the
Scottish Government to satisfy Rule 932 of the Parliamentrsquos Standing Orders It does not form
part of the Bill and has not been endorsed by the Parliament
2 The purpose of the Bill is to consolidate and strengthen the existing criminal law against
human trafficking and exploitation and enhance the status and support provided to victims Bill
provisions are in the following Partsmdash
Part 1 (Offences) includes provision on the creation of a single offence of human trafficking
for all types of exploitation of both adults and children establishes statutory aggravators of
human trafficking for use with other crimes and reframes the current standalone offence of
slavery servitude and forced or compulsory labour
Part 2 (Protection of victims) includes provision on prosecutorial guidelines for the
prosecution of victims and provision about the support and assistance to which adult victims
are entitled
Part 3 (Confiscation of property) includes provision on detention and forfeiture of property
and proceeds of crime
Part 4 (Trafficking and exploitation prevention and risk orders) includes provision on
two new preventive orders the trafficking and exploitation prevention order and the
trafficking and exploitation risk order
Part 5 (Strategy and reporting) includes provision on the trafficking and exploitation
strategy and the duty on specified Scottish public authorities to notify and provide
information about victims
Part 6 contains general and ancillary provisions
3 This Financial Memorandum considers the financial implications of each of the elements
of the Bill where relevant
BACKGROUND
4 Before considering the financial implications associated with the specific provisions
within the Bill it is important to consider both the current estimated extent of human trafficking
in Scotland and existing activity by public bodies and others in response to this issue
23
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
Extent of human trafficking in Scotland
5 Human trafficking is by its nature a hidden crime The National Referral Mechanism
(NRM) is the process set up by the UK Government to identify and support victims of trafficking
in the UK The NRM is also the mechanism by which the UK Human Trafficking Centre
collects data about potential victims of trafficking Information about suspected child and adult
victims of human trafficking is referred by relevant ―first responder organisations such as the
police and third sector bodies for example Migrant Help and the Trafficking Awareness Raising
Alliance (TARA) Referrals relate to victims trafficked from outside and within the UK The
table below summarises the most recent available information on NRM referrals from first
responder organisations in Scotland
Table 1 Recent referrals from first responders in Scotland of potential child and adult
human trafficking victims to the National Referral Mechanism
2012 2013
Adults 67 77
Children 29 22
Total 96 99
of all UK Referrals 8 6
Source National Crime Agency National Referral Mechanism Statistics 2012 and 20131
6 Various reports confirm that the number of victims referred through the NRM is likely to
be a significant underestimate of the actual number of potential victims of trafficking For
example the Equality and Human Rights Commission Inquiry into Human Trafficking in
Scotland (2011) noted ―estimates of identified potential victims do not reflect what is likely to be
a much greater number of unidentified victims2
7 The UK National Crime Agency (NCA) Strategic Assessment of the Nature and Scale of
Human Trafficking in the UK3 aims to provide an indication of the nature and scale of human
trafficking beyond the number of referrals to the NRM The assessment is produced using
intelligence held by the NCA the NRM and intelligence information collected from agencies
such as Police Scotland the Home Office Gangmastersrsquo Licensing Authority and non-
government organisations The assessment removes information of potential victims referred to
the NRM who have received a negative ―reasonable grounds or ―conclusive decision (ie it
has been confirmed that they are not victims of trafficking) or duplicate information about
individuals (ie the same person has been referred more than once or by more than one agency)
to show a total number of ―unique potential victims of trafficking The NCA Assessment for
2013 indicated that there were significantly more unique potential victims of human trafficking
identified across the UK than the numbers referred to the NRM even excluding those that
received a negative decision and that the number of unique victims was increasing
1 httpwwwnationalcrimeagencygovukpublications399-nca-strategic-assessment-the-nature-and-scale-of-
human-trafficking-in-2013file 2httpwwwequalityhumanrightscomsitesdefaultfilesdocumentsScotlandHuman_Trafficking_in_Scotland_inq
uiry_into_human_trafficking_in_scotland-full-report_pdf_pdf 3 httpwwwnationalcrimeagencygovukpublications399-nca-strategic-assessment-the-nature-and-scale-of-
human-trafficking-in-2013file
24
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
Table 2 Comparison of recent UK referrals to the National Referral Mechanism and the
National Crime Agency Strategic Assessment of the Scale of Human Trafficking
2012 2013 Change
Referred to NRM 778 1095 +41
NCA Assessment No of
Unique Potential Victims
Identified
2255 2744 +22
Source National Crime Agency Strategic Assessment of the Nature and Scale of Human
Trafficking in the UK4
8 For Scotland the NCA Assessment for 2013 identified 55 unique potential victims of
human trafficking compared with 99 referrals to the NRM It is not known why in contrast to
the position in England and Wales the NCA Assessment for Scotland is lower than the NRM
referrals although it will exclude potential victims who received a negative conclusive decision
and duplicate referrals However these numbers must be treated with significant caution There
remains strong conviction amongst law enforcement bodies and victims organisations that there
are more victims of trafficking than are identified and that even once identified victims are
often unwilling to engage with authorities or identify themselves as having been trafficked For
the purpose of this Financial Memorandum the Scottish Government has accepted the NCA
assessment that there are likely to be between two and three times as many potential victims of
trafficking as are currently identified through the NRM This assessment is based on the Scottish
Governmentrsquos best understanding of the hidden nature of this crime and the known reluctance of
some victims to identify their trafficked status or to engage with public authorities
Criminal justice response to human trafficking and exploitation
9 There have been relatively few prosecutions and convictions for human trafficking
offences under existing criminal justice legislationmdash
The Criminal Justice (Scotland) Act 20035 (―the 2003 Act) provides for offences of
trafficking for the purposes of exploitation by way of prostitution
The Asylum and Immigration (Treatment of Claimants etc) Act 20046 (―the 2004
Act) provides for offences of trafficking for labour and other forms of exploitation
The Criminal Justice and Licensing (Scotland) Act 20107 (―the 2010 Act) amended
and extended the 2003 and 2004 Acts and created a standalone offence of holding
someone in slavery or servitude or requiring a person to perform forced or
compulsory labour
10 The first successful convictions for human trafficking in Scotland were in 2011 under
section 22 of the 2003 Act for trafficking for the purposes of prostitution During 2013 a total of
four people were convicted of human trafficking offences - one person under section 22 of the
2003 Act and three people under section 4 of the 2004 Act for trafficking for forced marriage
4 httpwwwnationalcrimeagencygovukpublications399-nca-strategic-assessment-the-nature-and-scale-of-
human-trafficking-in-2013file 5 httpwwwlegislationgovukasp20037
6 httpwwwlegislationgovukukpga200419
7 httpwwwlegislationgovukasp201013
25
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
The average custodial sentence length for those convicted of trafficking offences was 847 days
(just under two years and four months) as well as any confiscation order imposed
11 Although the number of convictions for trafficking offences has been small police and
the Crown Office and Procurator Fiscal Service (COPFS) have confirmed that even though it is
not possible to always prove the trafficking offence where a credible suspicion exists people
suspected of involvement with trafficking can and often are prosecuted and convicted for other
crimes such as crimes associated with prostitution forced marriage immigration offences and
drugs offences etc
12 Police Scotland has established a dedicated National Human Trafficking Unit to enhance
the police response to human trafficking through awareness raising intelligence gathering
training and providing divisions with advice and specialist knowledge The COPFS has
appointed dedicated expert fiscals to prosecute human trafficking offences
Support for victims of trafficking
13 The Scottish Government currently allocates direct grant funding to non-government
organisations to provide and facilitate immediate support and assistance to the adult victims of
human trafficking This support can include immediate safe accommodation psychological
support assistance in accessing medical treatment material assistance interpretation and
translation and assistance either with repatriation or securing longer-term access to mainstream
services and support such as welfare benefits and housing The provision of support and
assistance is not conditional on the potential victim being willing to participate in the criminal
justice process Under the NRM victims of trafficking are guaranteed ―a recovery and reflection
period to recover from their experience escape the influence of those alleged to have trafficked
or exploited them and consider whether to engage with authorities The Council of Europe
Convention on Action Against Trafficking in Human Beings8 provides for a reflection period of
at least 30 days for all trafficked victims when there are reasonable grounds to believe that the
person concerned is a victim The current minimum recovery and reflection period in Scotland
and the rest of the UK is 45 days
14 In 2013-14 total grant funding of pound723000 was provided by the Scottish Government
towards the costs of ensuring immediate support and assistance for the adult victims and
potential victims of trafficking in Scotland This funding was provided through two non-
government organisationsmdash
the TARA Service which works with women aged 18 years and over across
Scotland where there are concerns that they have been trafficked for commercial
sexual exploitation and
Migrant Help a UK-wide organisation providing support and advice services to
migrants including new asylum claimants refugees EU nationals etc
15 Support for the child victims of trafficking is co-ordinated by local authorities as part of
their child protection arrangements and in line with the policy intention that children remain
8 httpwwwcoeinttdghlmonitoringtraffickingdocsconvntnCETS197_enasp
26
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
children first and that their needs should be treated accordingly The Scottish Government has
produced a toolkit for agencies working with children and young people to ensure that staff are
able to identify trafficked children and make appropriate referrals so that victims can receive
protection and support The toolkit is designed to be used in conjunction with National Child
Protection Guidance9 which was first published in 2010 and refreshed in 2014 and other
relevant national and international guidance Information about current expenditure on child
victims of trafficking is not recorded separately from information about wider expenditure on
child protection services
Lord Advocate guidance on prosecution policy
16 In his letter of 21 January 2013 to the Scottish Parliament European and External
Relations Committee10
the Lord Advocate set out the current arrangements for fiscals
considering the prosecution of a confirmed or potential victim of human trafficking where it is
believed or claimed that the crime was committed as a direct consequence of the personrsquos
trafficked status The letter set out the basis for the current Lord Advocatersquos guidance to
prosecutors including the presumption against the prosecution of a credible trafficking victim
for crimes that arise as a consequence of the victimrsquos trafficked status
Human trafficking strategic approach awareness raising and training
17 The first Scottish Human Trafficking Summit was hosted by the Cabinet Secretary for
Justice in October 2012 The summit brought together key law enforcement public private and
third sector organisations with an interest in human trafficking Following the summit a number
of strategic collaborative actions were agreed and progressed including with reference to
awareness raising and training for frontline staff data collection and analysis identification care
and support for both child and adult victims of trafficking and enhancing enforcement
18 One specific workstream related to awareness raising and training of front-line staff
likely to come into contact with trafficking victims or potential instances of trafficking
Following the summit Police Scotland with support from the Scottish Government and others
prepared published and circulated widely an awareness raising leaflet ndash Reading the Signs11
ndash to
assist police officers and staff in other front line posts in identifying the signs of potential
trafficking The Scottish Government also participated with the UK Government in a UK-wide
public awareness raising campaign about modern slavery and trafficking
19 In addition to general awareness raising specific training material was prepared for key
front-line staff For example all police officers were required to undertake an e-learning course
on human trafficking A special leaflet for health workers was prepared and circulated by NHS
Health Scotland An e-learning module for health workers about their role in identifying and
9 httpwwwscotlandgovukPublications2014053052
10httpwwwscottishparliamentukS3_EuropeanandExternalRelationsCommitteeGeneral20DocumentsLetterfro
mTheLordAdvocatepdf 11
httpwwwscotlandpoliceukassetspdf174967human-traffickingview=Standard
27
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
responding to victims of trafficking was made available through the National Gender Based
Violence and Health Programme12
IMPACT OF SPECIFIC PROVISIONS
PART 1 - OFFENCES
Single trafficking offence
20 The Bill establishes a new single offence of human trafficking for all types of
exploitation for both adults and children replacing existing separate criminal offences (see
paragraph 9 above) As noted above to date there have been relatively small numbers of
prosecutions under existing trafficking offences
21 The maximum penalty for conviction on indictment for the single trafficking offence will
be life imprisonment compared with a maximum of 14 years for the current separate offences
Although it will be for the court to decide how to sentence people convicted under the new single
offence in any given case it is likely that the availability of a higher maximum sentence will
have cost implications for the Scottish Prison Service (SPS)
Revised slavery servitude and forced labour offence
22 The Bill will also repeal and replace the existing exploitation offence within section 47 of
the 2010 Act which criminalises holding someone in slavery or servitude or requiring them to
perform compulsory or forced labour The offence will be revised and strengthened to allow the
court to consider in assessing whether a person has been a victim of an offence the victimrsquos
characteristics such as age physical or mental illness disability or where relevant family
relationships The maximum penalty for the offence will be increased from 14 years for the
current offence to life imprisonment for a conviction on indictment
Statutory aggravators
23 The Bill makes provision for statutory aggravators which apply in cases where an
accused person commits an offence connected with human trafficking and for when the offence
is committed in connection with the accusedrsquos position as a public official The court must take
the aggravation into account in determining the appropriate sentence if it is proved that the
offence is aggravated in this way The statutory aggravator is not anticipated to have any
substantial financial implications for public private or third sector bodies or for individuals
Costs on the Scottish Administration
24 Consolidating and clarifying the existing criminal law on trafficking and exploitation
alongside other measures arising from the Bill and the trafficking and exploitation strategy
including training and awareness raising and support for victims should increase the potential
for successful investigations prosecutions and convictions of human trafficking and exploitation
offences There have been six successful prosecutions for a specific trafficking offence to date in
Scotland with an average custodial sentence length of two years and four months against a
12
httpwwwgbvscotnhsuk
28
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
maximum possible sentence of 14 years The maximum number of prosecutions in any one year
was four individuals in two separate cases
25 Police and prosecutors already have in place specialist resources for investigating and
prosecuting human trafficking and exploitation offences and these provisions will not add to
these costs Law enforcement agencies have confirmed that whilst the number of prosecutions
for specific trafficking offences has been low where victims are identified but are unwilling to
testify individuals suspected of trafficking and exploitation will be prosecuted in court for other
related offences The Lord Advocate has identified that ―If we donrsquot have the evidence [to
prosecute for a specific human trafficking offence] we prosecute for fraud ID theft or asylum
and immigration offences13
26 The Scottish Government does not anticipate therefore significant additional cost
implications for law enforcement agencies or courts as cases will often proceed with a
trafficking offence alongside or in place of other related offences For the same reason the
Scottish Government does not anticipate significant additional cost on the Scottish Legal Aid
Board (SLAB) However if it is assumed that the number of successful trials proceeding in any
single year doubles from two to four there would be some additional costs on the COPFS the
Scottish Court Service (SCS) and SLAB based on the average unit costs for cases proceeded
either through Sheriff Court Solemn procedure or through the High Court These estimated costs
depending on whether cases are proceeded through the High Court or Sheriff Court solemn
procedure are illustrated in the table below
Table 3 Estimated unit costs of additional trial procedures through either High Court or
Sheriff Court solemn procedure (pound000)
Average prosecution
costs per procedure
(COPFS)
Average court costs
per procedure (SCS)
Average legal aid
costs per procedure
(SLAB)
Sheriff Court solemn
procedure (pound000) pound49 pound19 pound16
High Court (pound000) pound556 pound90 pound135
Estimated average
costs of 2 additional
trial procedures 4
accused per annum
(pound000)
pound99-pound1112 pound38-pound180 pound64-pound540
Source costs of the Criminal Justice System in Scotland Dataset (2013)14
27 There will also be costs to the SPS both through any increase in the number of successful
convictions for trafficking and exploitation offences and an anticipated increase in the average
length of custodial sentence for these crimes It is not possible to know for certain the total
13
httpwwwdailyrecordcouknewsscottish-newsonly-three-successful-prosecutions-brought-4457684 14httpwwwscotlandgovukTopicsStatisticsBrowseCrimeJusticePublicationscostcrimjustsc
otcostcrimjustdatasethttpwwwscotlandgovukTopicsStatisticsBrowseCrimeJusticePublicationscostcrimj
ustscotcostcrimjustdataset
29
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
number of future convictions or what sentencing decisions might be taken by courts in individual
cases
28 The table below illustrates the potential cost implications of either maintaining or
increasing the current maximum number of convictions in any individual year from four to eight
convictions For the purpose of the calculation it is assumed that the average custodial sentence
length for trafficking and exploitation offences will increase from two years and four months
(classified as a short-term sentence) to over four years (classified as a long-term sentence) as
increasing the maximum sentence to life imprisonment is anticipated to increase the average
sentence for a trafficking offence The estimated average annual cost of a prison place based on
SPS figures is pound42500 Taking account of the current early release arrangements for long-term
prisoners and the overlapping of individual sentences would result in an estimated increase of 8
to 21 total prison places each year after four years ndash ie with an additional four people receiving
custodial sentences each year and released by the Parole Board at the halfway point of their
sentence or automatically at the two-thirds point The total costs to the SPS will be within a
range of pound340000 to pound890000 These costs will fit within the overall budget costs to the SPS
As at 17 October 2014 there were 7731 people in custody in Scotland An additional 21 places
accounts for 03 of the total prison population
Table 4 Estimated range of costs to the Scottish Prison Service from increasing the
number and average length of successful prosecutions for trafficking offences
Year 1 Year 2 Year 3 Year 4
Additional Prison places 0-4 4-12 8-17 8-21
Additional Cost (pound000) pound0-pound170 pound170- pound510 pound340-pound720 pound340-pound890
Table 5 Estimated range of combined costs for trial procedures and prison places
Year 1 Year 2 Year 3 Year 4
Additional Cost (pound000) pound20-pound353 pound190- pound693 pound360-pound900 pound360-pound1073
Costs on other bodies individuals and businesses
29 There will be no new costs falling on other bodies individuals and businesses as a
consequence of these sections but see the section below with reference to victim support
Costs on local authorities
30 There will be no new costs falling on local authorities as a consequence of these specific
sections
PART 2 - PROTECTION OF VICTIMS
Duty on the Lord Advocate to publish guidance about the prosecution of credible trafficking and
exploitation victims who have committed offences
Costs on the Scottish Administration
31 As noted above the Lord Advocate already prepares and publishes guidance to fiscals
about the prosecution of credible victims of human trafficking for crimes committed as a direct
30
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
consequence of their trafficking status The requirement to publish such guidance would in
future be statutory However there will be no new costs on the Scottish Government or the
COPFS as a consequence of placing the requirement for the Lord Advocate to issue this
guidance on a statutory basis
Costs on other bodies individuals and businesses
32 There will be no new costs falling on other bodies individuals and businesses as a
consequence of these sections
Costs on local authorities
33 There will be no new costs falling on local authorities as a consequence of these sections
Ensure the rights of victims to access and support
34 The Bill will place a statutory duty on the Scottish Ministers to secure the provision of
relevant immediate support and recovery services for adult victims of trafficking subject to an
assessment of need The Bill will specify those victims or potential victims entitled to support
and the minimum time periods during which such services should be provided Specifically the
Bill will require Ministers to provide support and assistance based on each individualrsquos assessed
needs during the recovery and reflection period (currently 45 days) during which the
individualrsquos trafficking status is determined The Bill specifies minimum support and assistance
that should be considered as part of the assessment including access to housing treatment
interpretation services etc The Scottish Ministers have the flexibility to provide support and
assistance outwith the specified reflection and recovery period where this is considered
appropriate
35 As noted above the Scottish Ministers already provide grant funding totalling pound723000
to third sector organisations to assist identified adult potential victims of trafficking Provision of
support to adult victims will be placed on a statutory basis The number of adult potential victims
of trafficking referred through the NRM during 2013 was 77 although not all of these will have
requested assistance or received the full range of support services It is assumed that other
actions arising from the Bill including the single offence and publication of the trafficking and
exploitation strategy will result over time in an increase in identified victims and requests for
assistance and support
Costs on the Scottish Administration
36 The Scottish Government anticipates that improved awareness raising and training of
front-line staff will result in an increase in the number of victims identified over time It is not
possible to know how quickly this improvement will be achieved However between 2012 and
2013 the number of potential identified victims across the UK identified through the NCA
strategic assessment and NRM increased by 22 and 41 respectively Given the need for
awareness raising and training to impact the Scottish Government does not anticipate a similar
scale of increase in the immediate term but the Government considers it reasonable to anticipate
a possible increase of between 10 and 20 per annum in the overall number of requests for
assistance and support each year over the next four years Assuming a similar mix of needs as
31
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
current victims the increased costs to the Scottish Government on top of existing funding
would range between pound290000 to pound580000 per annum by year four
Table 6 Estimated range of costs increases for victim support and assistance (pound000)
Year 1 Year 2 Year 3 Year 4
Additional Cost (pound000) pound0-pound140 pound140-pound280 pound220-pound430 pound290-pound580
Costs on other bodies individuals and businesses
37 There will be no additional costs on other public bodies individuals or businesses
associated with these specific provisions There will be no direct additional costs falling on third
sector organisations as a consequence of the specific provisions It is likely however that all or
part of the additional funding identified above will be directed by the Scottish Government
through relevant third sector organisations with the expertise to provide immediate support and
protection to victims
Costs on local authorities
38 The Bill creates no new legislative requirements for the delivery of childrenrsquos services
recognising that this already exists It is therefore not anticipated that the Bill will result in any
quantifiable additional costs on local authorities or other public bodies as a result of support for
child victims Child victims of trafficking are supported as part of the Getting It Right for Every
Child (GIRFEC) approach any child whether identified as trafficked or not will be assessed on
the basis of its needs It is anticipated that as a consequence of the strategy (for which the Bill
provides) that more children may be identified as trafficked It is noted however that various
reports including most recently the UK Governmentrsquos NRM Review Report15
have found that
children who are already receiving support from relevant authorities in the UK are often not
identified as trafficked victims because of lack of awareness of the referral process It may be
that actions arising from the development of the strategy and dialogue with stakeholders will
give rise to additional activity or costs with reference to child victims of trafficking but these are
not known and cannot be estimated at this time
PART 3 - CONFISCATION OF PROPERTY
39 The Bill will provide police with powers to detain the property such as cars boats etc of
a person arrested for a trafficking offence This power will be exercised at the time of arrest and
is not expected to impose any additional costs on the police or others
Costs on the Scottish Administration
40 There will be no additional costs on the Scottish Government as a result of these
provisions Individuals can apply to the court to have vehicles ships or aircraft released from
detention This will be considered as part of the overall case and will not add to the costs to the
criminal justice system
15
httpsnrmhomeofficegovuk
32
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
Costs on other bodies individuals and businesses
41 There will be no additional costs on other public bodies individuals or businesses
including Police Scotland as a result of these specific provisions
Costs on local authorities
42 There will be no additional costs on local authorities as a result of these specific
provisions
PART 4 - TRAFFICKING AND EXPLOITATION PREVENTION AND RISK ORDERS
Introduce new measures to disrupt and prevent trafficking and exploitation
43 The Bill will introduce two new civil orders and associated interim orders to assist in
preventing trafficking and exploitation Trafficking and Exploitation Prevention Orders (TEPOs)
and Trafficking and Exploitation Risk Orders (TEROs) Where an individual has been convicted
of a trafficking or exploitation offence or an offence with a statutory trafficking aggravator a
TEPO may be imposed by a court where there is a risk that that individual may commit a further
human trafficking offence and it is necessary to make the order to protect people from the
physical or psychological harm which might occur if such an offence were committed The
TEPO will prevent the individual from engaging in activities described in the order Where a
person has not been convicted of a trafficking or exploitation offence but a court considers that
the person presents a significant risk of harm to others through the individual committing a
trafficking or exploitation offence the court can impose a TERO restricting specific activities or
imposing requirements These orders will be civil but breach of an order will constitute a
criminal offence with a maximum penalty of five years in prison available to the court
44 The Bill will categorise the trafficking and exploitation offences as lifestyle offences in
order to automatically trigger provisions within the Proceeds of Crime Act 2002 (―the 2002
Act) The definition of an offence as a ―lifestyle offence allows for proceedings under the
2002 Act to confiscate assets or monies from the individual convicted of the offence
Costs on the Scottish Administration
45 The purpose of TEPOs and TEROs is to prevent criminal activity associated with
trafficking and exploitation from arising There will be some cost implications for law
enforcement organisations which will need to monitor the terms of any order imposed by the
courts However these will be offset by the savings made from being able to intervene at an
early stage of criminality if an order has been breached For the equivalent civil orders within the
UK Modern Slavery Bill the UK Government has estimated potential net savings of between
pound130000 and pound1090000 per annum The Scottish Government has not incorporated any
savings for the purpose of Scottish legislation but expects the costs of implementing TEPOs and
TEROs and detention powers to be at least cost neutral for the Scottish Administration and other
public bodies
33
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
46 The Bill will give courts powers to impose a TEPO at the time of sentencing There will
be no immediate additional costs for the courts or COPFS associated with TEPOs imposed as
part of sentencing The Chief Constable of Police Scotland will also be able to apply to the court
for a TEPO to be imposed on a relevant offender previously convicted of a trafficking offence
There will be costs to Police Scotland in making the application and to the SCS and to SLAB in
considering the application As there have been only six previous convictions for trafficking
offences in Scotland the Scottish Government expects the number of applications for TEPOs for
previous convictions to be small one-off and will not add to the overall costs of the criminal
justice system The Chief Constable of Police Scotland can also apply to the court for a TERO
against an individual where it is considered that that individual is likely to commit a trafficking
offence
47 Looking at the equivalent costs for similar civil orders eg Sexual Offences Prevention
Orders the total costs to the SCS the COPFS and SLAB of applying for a TERO or post-
sentencing TEPO are estimated at between pound1000 and pound6000 per order It is not possible to
know how many TEPOs or TEROs might be applied for but assuming a number half the level of
the estimated maximum number of potential convictions for trafficking offences each year (four
to eight) would give estimated costs of between pound2000 (2 x pound1000) and pound24000 (4 x pound6000)
per annum
48 There will be costs to Police Scotland in monitoring TEPOs and TEROs whether
imposed at the time of sentence or by application but this will sit alongside Police Scotlandrsquos
existing crime prevention and investigative responsibilities and is not expected to add to
manpower costs
49 In addition to the costs of imposing and monitoring TEPOs and TEROs there will be
costs associated with prosecuting a breach of a TEPO or TERO Analysis in England and Wales
indicates that breaches of equivalent Serious Crime Prevention Orders are relatively low
Assuming one breach per annum the total combined costs to the COPFS the SCS and SLAB
would be between pound8400 and pound78100 per annum (see the combined costs for either sheriff
court or High Court procedures set out in Table 3 above) Assuming a maximum sentence of
five years the costs to the SPS for additional prison places would be between pound85000 and
pound127500 per annum (ie the pound42500 average costs of a prison place times either two or three
places depending on whether offenders are released early at the halfway or two-thirds point of
their sentence)
50 It is important to remember however that the purpose of TEPOs and TEROs is to
prevent further trafficking and exploitation offences occurring A TEPO or TERO will only be
imposed where a court considers that there is a credible risk of an individual committing such a
crime Any costs associated with the imposition and breach of TEPOs and TEROs needs to be
offset against the potential costs of prosecutions If each TEPO or TERO prevents the costs of a
conviction for an offence as set out in Part 1 above the costs to the Scottish Administration
would be at least cost neutral in terms of saved court and prison places expenditure
34
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
Costs on other bodies individuals and businesses
51 There will be no costs on other bodies businesses or other individuals as a consequence
of these sections
Costs on local authorities
52 There will be no new costs on local authorities as a consequence of these sections
PART 5 - STRATEGY AND REPORTING
Ensure a strategic cross-agency approach to tackling trafficking
53 The Bill places a duty on the Scottish Ministers to prepare publish and regularly review
and update a trafficking and exploitation strategy to assist in ensuring a co-ordinated and
strategic approach to this issue The provisions place a duty on Ministers to consult with such
organisations and individuals as they consider to have a relevant interest in the issues of human
trafficking and exploitation The Bill places a duty on relevant public bodies to be named in
regulations to assist in the preparation and review of the strategy
54 The Bill will place a duty on relevant public authorities to provide anonymised data about
potential human trafficking and exploitation victims to Police Scotland
Costs on the Scottish Administration
55 Activity arising from these provisions within the Bill will build on the activity and
current resources already committed to this area of work
56 Based on similar activities the estimated additional costs to the Scottish Ministers of
preparing and reviewing a trafficking and exploitation strategy will be approximately pound25000
every three years Alongside the preparation and publication of the strategy the Scottish
Ministers would also propose to support additional awareness raising and training activity to
build on the existing awareness raising and training activity already undertaken by relevant
organisations including the NHS Police Scotland and COPFS Consideration would be given to
how best to co-ordinate these resources alongside existing expenditure and activity For the
purposes of the Financial Memorandum and based on current activity additional costs on top of
existing activity are estimated at approximately pound100000 to pound250000 per annum over the first
four years of the Bill This is based on the best estimated costs of preparing and publishing
publicity and guidance material averaged over a number of years The exact costs will depend
on decisions taken in dialogue with stakeholders as part of the preparation of the strategy
57 The Scottish Government anticipates that the costs to relevant public authorities of
providing anonymised data about potential human trafficking victims to Police Scotland will be
marginal Costs to Police Scotland of collating this data will form part of their existing
intelligence gathering activity
35
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
Costs on other bodies individuals and businesses
58 There will be some costs on other bodies individuals and businesses in engaging with the
Scottish Ministers in the preparation and publication of the Strategy For business and
individuals this will be voluntary depending on their willingness to engage For public bodies
their level of engagement will depend on the relevance of the issue of trafficking and
exploitation to their work and their potential contribution to combating this behaviour Any
additional costs are expected to fit within or sit alongside their existing responsibilities for
example with reference to promoting and ensuring equalities and the application of human
rights obligations
Costs on local authorities
59 There will be costs on local authorities associated with engaging in the preparation and
review of the trafficking and exploitation strategy and in awareness raising and training of front-
line staff The additional costs should be marginal on top of the existing guidance and activity
already in place with reference to the identification and support of potential child victims of
trafficking The aim will be to minimise costs for other front-line local authority staff by
adapting the general awareness raising and training materials described above
SUMMARY
60 The table below provides a summary of the costs of each element of the Bill as described
above
Table 7 Summary table of costs for each aspect of the Bill (pound000)
Year 1 Year 2 Year 3 Year 4
Clarifying amp
Strengthening the
Criminal Law ndash Para 28 pound20-pound353 pound190- pound693 pound360-pound900 pound360-pound1073
Ensure the rights of
victims to access and
support - Para 36 pound70-pound140 pound140-pound280 pound220-pound430 pound290-pound580
Introduce new measures to
disrupt and prevent
trafficking pound016
pound0 pound0 pound0
Ensure a strategic cross
agency approach to
tackling trafficking ndash Para
56 pound125-pound275 pound100-pound250 pound100-pound250 pound125-pound275
TOTAL pound215-pound768 pound430-pound1223 pound680-pound1580 pound775-pound1928
16
The Scottish Government considers that the overall costs are at least cost neutral ndash see paragraphs 45 to 50
36
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December
SCOTTISH GOVERNMENT STATEMENT ON LEGISLATIVE
COMPETENCE
On 11 December 2014 the Cabinet Secretary for Justice (Michael Matheson MSP) made the
following statement
―In my view the provisions of the Human Trafficking and Exploitation (Scotland) Bill
would be within the legislative competence of the Scottish Parliament
mdashmdashmdashmdashmdashmdashmdashmdashmdashmdash
PRESIDING OFFICERrsquoS STATEMENT ON LEGISLATIVE
COMPETENCE
On 11 December 2014 the Presiding Officer (Rt Hon Tricia Marwick MSP) made the following
statement
―In my view the provisions of the Human Trafficking and Exploitation (Scotland) Bill
would be within the legislative competence of the Scottish Parliament
37
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December
SP Bill 57ndashEN Session 4 (2014)
HUMAN TRAFFICKING AND EXPLOITATION
(SCOTLAND) BILL
EXPLANATORY NOTES
(AND OTHER ACCOMPANYING DOCUMENTS)
Parliamentary copyright Scottish Parliamentary Corporate Body
Information on the Scottish Parliamentrsquos copyright policy can be found on the website -
wwwscottishparliamentuk
Produced and published in Scotland on behalf of the Scottish Parliamentary Corporate Body by APS
Group Scotland
ISBN 978-1-78534-569-2
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
public position and proved that the offence is so aggravated These are similar to the steps which
must be taken in relation to the general aggravation in section 5
35 Subsection (5) defines those to be considered as a public official for the purposes of
section 6 while subsection (6) defines the term ―an international organisation for the purposes
of this section
36 Subsection (7) enables the Scottish Ministers to modify by regulations the definition of
who is a public official and the definition of an international organisation Any such regulations
will be subject to the affirmative procedure
PART 2 ndash PROTECTION OF VICTIMS
Prosecution of victims
Section 7 Lord Advocatersquos guidelines on prosecution of victims of offences
37 Section 7 places a duty on the Lord Advocate to prepare and publish guidelines for
prosecutors about the prosecution of suspected or confirmed victims of the offence of human
trafficking and the offence under section 4 of the Bill
38 Subsection (2) sets out that the guidelines must include factors to be taken into account or
steps to be taken when deciding whether to prosecute a person who does an act which constitutes
an offence having been compelled to do so and that the compulsion is directly attributable to the
person being or appearing to be a victim of an offence of human trafficking or as the case may
be under section 4 of the Bill
39 Subsection (3) provides that the Lord Advocate may from time to time revise the
guidelines
Support and assistance for adult victims of human trafficking
Section 8 Duty to secure support and assistance
40 Article 12 of the Council of Europe Convention on Action against Trafficking in Human
Beings6 (―COE Convention) sets out the support and assistance which must be provided for
trafficked victims The UK Government ratified the COE Convention in December 2008 and
Scotland became bound by its terms in April 2009 Currently there is no statutory basis for
potential victims of trafficking to access support and information on the type of support that they
are entitled to Support is currently provided through support agencies with grant funding from
the Scottish Ministers
41 Section 8 places a duty on the Scottish Ministers to secure the provision of support and
assistance for adult victims of human trafficking on an assessment of needs during a defined
period It also sets out a discretionary power for the Scottish Ministers to arrange the provision
of support and assistance outwith the mandatory period
6 httpconventionscoeintTreatyenTreatiesHtml197htm
8
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
42 Subsection (1) provides that where there are reasonable grounds to believe that an adult is
a victim of human trafficking the Scottish Ministers must secure the provision of such support
and assistance as is necessary given the adultrsquos needs for the relevant period
43 Subsection (2) defines the relevant period It begins on the day it is determined there are
reasonable grounds to believe that the adult is a victim of human trafficking (paragraph (a)) and
ends on the earlier of either the end of a period specified in regulations made by the Scottish
Ministers (paragraph (b)(i)) or the date on which there is a conclusive determination that the
adult is or is not a victim of a human trafficking offence (paragraph (b)(ii))
44 Subsection (3) gives the Scottish Ministers discretion to provide support and assistance
outwith the mandatory period under subsection (2) The support and assistance may be provided
to the adult during the period when a competent authority is determining whether there are
reasonable grounds to believe that the person is a victim of human trafficking (paragraph (a)) It
may also be provided before the date on which there is a conclusive determination in relation to
the adult if the mandatory period has ended by then (paragraph (b)) or after that conclusive
determination for such period as Ministers think appropriate (paragraph (c))
45 Subsection (4) provides a non-exhaustive list of the kind of support and assistance that
may be provided under section 8 The list provides that support and assistance may be provided
in connection with (but not limited to) the followingmdash
accommodation
day to day living
medical advice and treatment
language translation and interpretation
counselling
legal advice
information about other services available to the adult and
repatriation
46 Subsection (5) provides that the Scottish Ministers must ensure that in securing the
provision of support and assistance assistance is only provided where the adult consents
(subsection (5)(a)) and that the provision of assistance is not made conditional on the adult
assisting with a criminal prosecution or investigation (subsection (5)(b))
47 Subsection (6)(a) describes when there are reasonable grounds to believe that an adult is a
victim of a trafficking offence for the purposes of securing support and assistance Subsection
(6)(b) describes what is meant by a ―conclusive determination that an adult is or is not a victim
of an offence of human trafficking for these purposes
48 Subsection (7) defines what is meant by the terms ―competent authority and ―the
Trafficking Convention for the purposes of this section
9
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
PART 3 - CONFISCATION OF PROPERTY
Detention and forfeiture
Section 9 Detention of vehicle ship or aircraft
49 Section 9 sets out the power of a constable to detain a vehicle ship or aircraft if a person
has been arrested for an offence of human trafficking
50 Subsection (1) describes the circumstances where a police constable may detain a vehicle
ship or aircraft Subsection (1)(a) provides that a constable may detain a vehicle ship or aircraft
if a person has been arrested for an offence of human trafficking and the constable has
reasonable grounds to believe that a forfeiture order would be made if the person arrested were
convicted of the offence (subsection (1)(b))
51 Subsection (2) provides for the duration of the detention of the property Subsection
(2)(a) provides that the vehicle ship or aircraft may be detained until a decision is taken as to
whether or not to begin solemn proceedings against the person arrested for the offence In
circumstances where solemn proceedings have begun the property may be detained until the
person is acquitted (subsection (2)(b)(i)) the person is convicted and a decision is made whether
or not to order forfeiture of the property under section 10 (subsection (2)(b)(ii)) or the
proceedings are otherwise concluded (subsection (2)(b)(iii))
52 Subsections (3) and (4) set out the circumstances in which solemn proceedings are to be
taken to have commenced and concluded for the purposes of this section
53 Subsection (5) lists the circumstances in which a person (including the accused) with a
relevant interest in the detained property may apply to the sheriff for release of the vehicle ship
or aircraft Subsection (6) sets out the sheriffrsquos power to order release subject to satisfactory
security being tendered
54 Subsection (7) provides that the sheriff may impose such other conditions as to the
release of the detained property as the sheriff thinks fit
Section 10 Forfeiture of vehicle ship or aircraft
55 Section 10 sets out the power of the court to order forfeiture of a vehicle ship or aircraft
used or intended to be used in connection with an offence of human trafficking
56 Subsections (1) to (3) provides that forfeiture of a vehicle ship or aircraft used or
intended to be used in connection with the offence of human trafficking may be ordered if a
person convicted on indictment of that offence when the offence was committedmdash
owned the vehicle ship or aircraft
was a director secretary or manager of a company which owned it
was in possession of it under a hire purchase agreement
10
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
was a director secretary or manager of a company which was in possession of it
under a hire purchase agreement
in relation to a vehicle was driving it
in relation to a ship or aircraft was the charterer of it or was acting as captain of it
57 Subsection (4) makes special provision about cases where a ship or aircraft is to be
forfeited but the offender does not own it and was not a director secretary or manager of a
company which owns it It provides that in those circumstances forfeiture of a ship or aircraft
may only be ordered if any one of the tests listed in this subsection is satisfied Subsection (4)(a)
provides that if a person who at the time the offence was committed owned the ship or aircraft
or was a director secretary or manager of a company which owned it knew or ought to have
known of the intention to use it in the course of the commission of the offence of human
trafficking then forfeiture of a ship or aircraft may be ordered Subsection (4)(b) provides that
in the case of a ship (other than a hovercraft) if its gross tonnage is less than 500 then forfeiture
of that ship may be ordered Subsection (4)(c) provides that in the case of an aircraft if the
maximum weight at which it may take off in accordance with its certificate of airworthiness is
less than 5700 kilogrammes then forfeiture of that aircraft may be ordered under this section
Protection is provided for particular categories of owner who due to the size of the ship or
aircraft in question or the circumstances in which it is used for trafficking do not know or
reasonably suspect or are unlikely to know or reasonably suspect that the ship or aircraft is
being used in that way There is a greater likelihood that an owner of a vehicle or smaller types
of ships or aircraft will have actual or constructive knowledge that their property is being or
intended to be used for the purposes of trafficking
58 Subsection (5) provides that forfeiture cannot be ordered without giving any person
claiming an interest in the relevant property the chance to make representations
Proceeds of crime
Section 11 Proceeds of Crime Act 2002 lifestyle offences
59 Section 11 amends Schedule 4 to the Proceeds of Crime Act 2002 (―2002 Act) to
categorise all trafficking and exploitation offences as lifestyle offences for the purposes of that
Act A conviction of a lifestyle offence triggers assumptions under the 2002 Act that the accused
has a criminal lifestyle and that the accusedrsquos property is recoverable as criminal proceeds
60 Section 11(a) amends Schedule 4 to the 2002 Act by substituting paragraph 4 thereof
with a list of all offences related to trafficking and thus categorising all such offences as lifestyle
offences for the purposes of the 2002 Act Section 11(b) amends the same Schedule by inserting
a new paragraph 4A to provide that an offence under section 4 of the Bill also constitutes a
lifestyle offence
11
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
PART 4 ndash TRAFFICKING AND EXPLOITATION PREVENTION AND RISK ORDERS
Trafficking and exploitation offences
Section 12 Relevant trafficking or exploitation offences
61 Section 12 provides a list of the relevant trafficking and exploitation offences for the
purposes of trafficking and exploitation prevention and risk orders made under the Act The list
includes repealed provisions as orders (other than orders on sentencing) may still be made with
reference to convictions under such provisions
62 Subsection (2) provides that the Scottish Ministers may modify by regulations the
offences contained in the list Under section 37(2) any such regulations are subject to the
affirmative procedure
Trafficking and exploitation prevention orders
Section 13 Prevention orders on sentencing
63 Section 13 provides that a court may instead of or in addition to dealing with the person
in any other way make a trafficking and exploitation prevention order (TEPO) on sentencing of
an adult
64 Subsection (1) sets out the three circumstances where the court may make a TEPO
against a person on sentencing The first is conviction of an adult of a relevant trafficking and
exploitation offence The second circumstance is acquittal of such an offence by reason of the
special defence set out in section 51A of the Criminal Procedure (Scotland) Act 1995 (which
provides a defence where a person is unable by reason of mental disorder to appreciate the nature
or wrongfulness of their conduct) The third circumstance is a finding of unfitness for trial in
relation to such an offence under section 53F of that Act (which provides that a person is unfit
for trial if it is established on the balance of probabilities that the person is incapable by reason
of a mental or physical condition of participating effectively in that trial) In relation to the third
circumstance there must also be a finding that the adult has done the act constituting the offence
65 Subsection (3) provides that the court may make a TEPO at its own instance or on the
motion of the prosecutor
66 Subsection (4) provides the test for making a TEPO on sentencing The court must be
satisfied that there is a risk that the person in respect of whom the order is to have effect may
commit another offence mentioned in section 12 and that it is necessary to make the prohibitions
and requirements in the order for the purpose of protecting persons generally or particular
persons from the physical or psychological harm which would be likely to occur if the person
committed such an offence
67 Subsection (5) provides a definition of ―the court for the purposes of this section
12
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
Section 14 Prevention orders on application
68 Section 14 provides that the chief constable may apply to a sheriff for a TEPO against an
adult
69 Subsection (2) sets out the appropriate sheriff to whom such an application should be
made
70 Subsection (3) sets out the tests for making a TEPO on application The sheriff must be
satisfied that the person in respect of whom the order is sought is a ―relevant offender
(subsection (3)(a)) that since the person first became a relevant offender the person has acted in
a way which means that there is a risk the person will commit a relevant trafficking or
exploitation offence (subsection (3)(b)) and it is necessary to make the prohibitions or
requirements in the order for the purpose of protecting persons generally or particular persons
from the physical or psychological harm which would be likely to occur if the person committed
such an offence (subsection (3)(c))
71 Subsection (4) provides that conduct which occurred before this section came into force
may be considered when determining whether there is a risk that a person may commit a relevant
trafficking offence
Section 15 Meaning of relevant offender
72 Section 15 defines what is meant by a ―relevant offender for the purposes of section 14
73 Subsection (2) provides that a person is a relevant offender if any of the court disposals
listed in the subsection have been made in the UK in relation to that person and in respect of a
relevant trafficking or exploitation offence (as set out in section 12 of the Bill)
74 Subsections (3) to (5) deal with findings of courts and tribunals outside the United
Kingdom Subsection (3) provides that a person is a relevant offender if under the law of a
country outside the United Kingdom a listed disposal is made in respect of a person in relation
to an offence which is equivalent to an offence listed in section 12 Subsections (4) and (5) set
out tests for determining whether an offence is equivalent to a relevant offence In particular
such offences are acts which constitute offences under the law of the country concerned and
which would constitute a relevant trafficking or exploitation offence under the law of Scotland if
done in the UK by a UK national or person habitually resident in Scotland or as regards the UK
(eg by virtue of the fact that travel was arranged into out of or within the UK)
75 Subsection (6) establishes a mechanism for determining whether an act constituting an
offence in a country outside the UK would constitute an offence under the law of Scotland
76 Subsection (8) provides that for the purposes of this section convictions acquittals
findings and cautions include those which took place before this section comes into force
13
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
Section 16 Contents of prevention orders
77 Section 16 makes provision about the prohibitions or requirements (or both) that may be
contained in a TEPO Each prohibition and requirement in a TEPO is for a fixed period and the
order itself is for a fixed period The order and the prohibitions and requirements may all be for
the same period However the Bill allows some requirements and prohibitions in the order to be
set for a period shorter than that of the order if that is appropriate
78 Subsection (2) provides that both the order and any prohibition or requirement in the
order must have a specified fixed period of at least five years The only exception to that
requirement relates to a prohibition on foreign travel and an order containing only a prohibition
on foreign travel (which is dealt with in section 17) and relates to a period of not more than five
years Subsection (4) provides that a TEPO may prohibit the person in respect of whom the
order is made from doing things or require that person to do things Different prohibitions and
requirements may have effect for different periods
79 Subsection (5) provides that if the court makes a TEPO in respect of a person already
subject to such an order the earlier order will cease to have effect
80 Subsection (6) defines what is meant by ―the court for the purposes of the section
Section 17 Prohibitions on foreign travel
81 Section 17 makes provision about prohibitions on foreign travel in TEPOs
82 Subsection (1) provides that a prohibition on foreign travel contained in a TEPO and
any TEPO which contains such a prohibition and no other prohibitions or requirements must be
for a fixed period of not more than five years
83 Subsection (2) defines a prohibition on foreign travel as a prohibition on travelling to
countries outside the UK (either by reference to particular countries or generally)
84 Subsection (3)(a) determines that a prohibition on foreign travel varied or renewed by
application under section 18 or 19 may be varied or renewed for further fixed periods of no more
than five years each time Subsection (3)(b) requires that an order containing only a foreign
travel restriction may be renewed for up to that fixed period
85 Subsection (4) sets out the requirement on a person in respect of whom a TEPO
containing a prohibition on foreign travel to all countries outwith the United Kingdom has been
made to surrender at a police station each passport that the person has
86 Subsection (5) provides that any passport surrendered must be returned as soon as is
reasonably practicable after the person ceases to be subject to such a prohibition on foreign
travel Circumstances where this subsection would not apply are provided for at subsection (6)
for example where a passport has already been returned to the relevant authority
14
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
Section 18 Orders on sentencing variation renewal and discharge
87 Section 18 makes provision about varying renewing and discharging TEPOs made on
sentencing
88 Subsections (2) to (4) set out general powers in this context The person in respect of
whom the TEPO is made or the prosecutor may apply for variation renewal or discharge of such
a TEPO That application is to be made to the High Court where that court made the order and
to the sheriff otherwise Subsection (4)(b) makes provision about shrieval jurisdiction in this
connection Where the relevant court receives such an application it may vary renew or
discharge individual prohibitions or requirements or add new prohibitions or requirements it
may renew the whole order or it may discharge the whole order
89 Subsection (5) provides that the court must before making an order under this section
give an opportunity to make representations to the person in respect of whom the order is made
the prosecutor and the chief constable Subsection (6) provides that after taking into account
any such representations the court may then make such order as it thinks appropriate
90 Subsection (7) sets out the tests the court must consider when deciding whether to vary
renew or discharge TEPOs made on sentencing (including by adding new prohibitions or
requirements) or any prohibitions or requirements within them Subsection (7)(a) applies the
tests for the making of a TEPO to any variation (including an increase or a relaxation of a
requirement or prohibition) renewal or addition Subsection (7)(b) applies those tests to any
discharge of a prohibition or requirement or of an order
91 Subsection (8) makes it clear that an order varying or renewing a TEPO is subject to the
requirements and prohibitions established by sections 16 and 17 in the same way as the original
order
92 Subsection (9) defines ―prosecutor for the purposes of this section
Section 19 Orders on application variation renewal and discharge
93 Section 19 makes provision about the variation renewal or discharge of TEPOs made on
application
94 Subsections (2) to (4) set out general powers in this context The person in respect of
whom the TEPO is made or the chief constable may apply to the sheriff for variation renewal or
discharge of a TEPO made on application Subsection (4)(b) makes provision about shrieval
jurisdiction in this connection Where the sheriff receives such an application the sheriff may
vary renew or discharge individual prohibitions or requirements or add new prohibitions or
requirements renew the order so that the period of the order itself is extended or discharge the
whole order
95 Subsection (5) provides that the sheriff must before making an order under this section
give an opportunity to make representations to the person in respect of whom the order is made
15
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
and the chief constable Subsection (6) provides that after taking into account any such
representations the sheriff may then make such an order as the sheriff thinks appropriate
96 Subsection (7) sets out the tests the sheriff must consider when deciding whether to vary
renew or discharge TEPOs on application (including by adding new prohibitions or
requirements) or any prohibitions or requirements within them Those tests reflect the tests for
the making of a TEPO
97 Subsection (8) provides that when determining an application under this section the
sheriff may consider conduct which occurred before this section comes into force
98 Subsection (9) makes it clear that an order varying or renewing a TEPO is subject to the
requirements and prohibitions established by sections 16 and 17 in the same way as the original
order
Section 20 Interim prevention orders
99 Section 20 gives power to a sheriff to make an interim TEPO while the main application
under section 14 is being determined The sheriff may make such an order if the sheriff
considers it just to do so (subsection (1)) and such an order may contain prohibitions or
requirements (or both) in relation to the person in respect of whom the order is to have effect
(subsection (2)) Those prohibitions or requirements may relate to things to be done or not done
in any part of Scotland or anywhere outwith Scotland (subsection (3))
100 Subsection (4) provides that an interim TEPO will only have effect for a fixed period
specified in the order and will cease to have effect on the determination of an application for a
TEPO under section 14 if that fixed period has not expired
101 Subsection (5) allows for an application to a sheriff in the sheriffdom of the sheriff who
made the interim TEPO for variation or discharge of that order Such an application may be
made by the person in respect of whom the order was made or the chief constable
Section 21 Appeals prevention orders
102 Section 21 provides for an appeals process in relation to TEPOs and interim TEPOs
103 Subsection (1) makes provision about TEPOs made on sentencing and any variation or
renewal of such a TEPO These are to be treated as sentences for the purposes of any appeal
104 Subsections (2) (3) and (4) make provision about appeals in relation to TEPOs made on
application any variation or renewal of such a TEPO and interim TEPOs The person in respect
of whom the order was made or the chief constable may appeal against any of these orders
16
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
Trafficking and exploitation risk orders
Section 22 Risk orders
105 Section 22 provides that the chief constable may apply to a sheriff for a trafficking and
exploitation risk order (TERO) against an adult A TERO differs from a TEPO in that it may be
made where a person has not previously been convicted of a trafficking or exploitation offence
but the personrsquos behaviour indicates a risk that others may be at harm as a result of that person
committing such an offence and intervention at an early stage is necessary to prevent that harm
A TEPO can only be made where a relevant offence has already been committed
106 Subsection (2) sets out the appropriate sheriff to whom an application for such an order
may be made
107 Subsection (3) sets out the tests for making a TERO The sheriff may only make an order
if satisfied that the person in respect of whom the order is sought has acted in a way which
means that there is a risk the person may commit a relevant trafficking or exploitation offence
(subsection (3)(a)) and it is necessary to make the prohibitions or requirements in the order for
the purpose of protecting persons generally or particular persons from the physical or
psychological harm which would be likely to occur if the person committed such an offence
(subsection (3)(b))
108 Subsection (4) provides that in assessing those tests the sheriff may consider conduct
which occurred before this section comes into force
Section 23 Contents of risk orders
109 Section 23 makes provision about the prohibitions or requirements (or both) that may be
contained in a TERO Each prohibition and requirement in a TERO is for a fixed period and the
order itself is for a fixed period The orders and the prohibitions or requirements may all be for
the same period However the Bill allows some requirements and prohibitions in the order to be
set for a shorter period if that is appropriate
110 Subsection (2) provides that both the order and any prohibition or requirement in the
order must have a specified fixed period of at least two years However this does not apply to a
prohibition on foreign travel or to an order that contains a prohibition on foreign travel and no
other prohibitions or requirements Such a prohibition (or an order containing only such a
prohibition) must be for a fixed period of no more than five years under section 24(1))
111 Subsection (4) provides that a TERO may prohibit the person in respect of whom the
order is made from doing things or require that person to do things Different prohibitions and
requirements may have effect for different periods
112 Subsection (5) provides that if the sheriff makes a TERO in relation to a person already
subject to such an order the earlier order will cease to have effect
17
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
Section 24 Prohibitions on foreign travel
113 Section 24 makes provision about prohibitions on foreign travel contained in a TERO
114 As noted above subsection (1) provides that a prohibition on foreign travel contained in a
TERO and any TERO which contains such a prohibition and no other prohibitions or
requirements must be for a fixed period of not more than five years
115 Subsection (2) defines a ―prohibition on foreign travel as a prohibition on travelling to
countries outwith the UK (either by reference to particular countries or generally)
116 Subsection (3)(a) determines that a prohibition on foreign travel varied or renewed under
section 25 may be varied or renewed for further fixed periods of no more than five years each
time Subsection (3)(b) requires that an order containing only a foreign travel restriction may be
renewed for up to that fixed period
117 Subsection (4) sets out the requirement on a person in respect of whom a TERO has been
made containing a prohibition on foreign travel to all countries outwith the United Kingdom to
surrender at a police station each passport that the person has Subsection (5) provides that any
passport surrendered must be returned as soon as is reasonably practicable after the person
ceases to be subject to a prohibition on foreign travel to all countries outwith the United
Kingdom Circumstances where this subsection would not apply are provided for at subsection
(6) for example where a passport has already been returned to the relevant authority
Section 25 Variation renewal and discharge of risk orders
118 Section 25 makes provision about the variation renewal or discharge of TEROs
119 Subsections (1) to (3) set out general powers in this context The person in respect of
whom the TERO is made or the chief constable may apply to the sheriff for variation renewal or
discharge of a TERO Subsection (3) makes provision about shrieval jurisdiction in this
connection Where the sheriff receives such an application the sheriff may vary renew or
discharge individual prohibitions or requirements or add new prohibitions or requirements
renew the whole order or discharge the whole order
120 Subsection (4) provides that the sheriff must before making an order under this section
give an opportunity to make representations to the person in respect of whom the order is made
and the chief constable Subsection (5) provides that after taking into account any such
representations the sheriff may then make any order the sheriff considers appropriate
121 Subsection (6) sets out the tests the sheriff must consider when deciding whether to vary
renew or discharge TEROs (including by adding new prohibitions or requirements) or any
prohibitions or requirements within them Subsection (6)(a) applies the tests for the making of a
TERO to any variation (including an increase or a relaxation of a requirement or prohibition)
renewal or addition Subsection (6)(b) applies those tests to any discharge of a prohibition or
requirement or of an order
18
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
Section 26 Interim risk orders
122 Section 26 provides that a sheriff may make an interim TERO while the main application
under section 22 is being determined The sheriff may make such an order if the sheriff
considers it just to do so (subsection (1)) and such an order may contain prohibitions or
requirements (or both) in relation to the person in respect of whom the order is to have effect
(subsection (2)) Those prohibitions or requirements may relate to things to be done or not done
in any part of Scotland or anywhere outwith Scotland (subsection (3))
123 Subsection (4) provides that an interim TERO will only have effect for a fixed period
specified in the order and will cease to have effect on the determination of the main application
if that fixed period has not already expired
124 Subsection (5) allows for an application for variation or discharge of an interim TERO
(or a requirement or prohibition in the order) to be made to a sheriff in the sheriffdom of the
sheriff who made the interim order by the person in respect of whom the order was made or the
chief constable (subsection (6))
Section 27 Appeals risk orders
125 Section 27 provides for an appeals process in relation to TEROs and interim TEROs and
any order varying or renewing such a TERO or interim TERO The person in respect of whom
the order was made or the chief constable may appeal against any of these orders
Offences and supplementary provision
Section 28 Offences
126 Section 28 makes provision about breach of TEPOs and TEROs
127 Subsections (1) and (2) provide that a person commits an offence if that person does
anything which the person is prohibited from doing by an order or fails to do anything which the
person is required to do by a TEPO or a TERO or an interim TEPO or TERO
128 Subsection (3) makes provision about penalties in relation to these offences A person
who commits an offence under this section is liable on summary conviction to imprisonment for
a term not exceeding 12 months or a fine not exceeding the statutory minimum (or both) On
conviction on indictment that person is liable to imprisonment for a term not exceeding five
years or a fine (or both)
Section 29 Enforcement of other UK orders
129 Section 29 provides that the Scottish Ministers may modify by regulations the list of
orders at section 28(2) so that a breach of those orders in Scotland constitutes an offence under
section 28(1) The orders which may be added are ―relevant UK orders Those are described in
subsection (2) as orders under the law of England and Wales or Northern Ireland which appear to
the Scottish Ministers to be equivalent or similar to TEPOs TEROs or interim TEPOs or
TEROs
19
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
Section 30 Interpretation of Part 4
130 Section 30 defines certain terms used in Part 4
PART 5 - STRATEGY AND REPORTING
Section 31 Trafficking and exploitation strategy
131 Section 31 places a duty on the Scottish Ministers to prepare a trafficking and
exploitation strategy The strategy under this section is a strategy which sets out such actions
arrangements and outcomes as the Scottish Ministers consider appropriate in relation to the
conduct which constitutes an offence under this Act
132 Subsection (3) lists some of the matters which may be set out in the strategy though that
list is not exhaustive Those matters include for example training and awareness raising in
relation to the detection and prevention of the conduct which constitutes an offence of human
trafficking or an offence under section 4
Section 32 Review and publication of strategy
133 Subsection (1) of section 32 provides that the strategy prepared under section 31 must be
reviewed by the Scottish Ministers every three years Following a review the Scottish Ministers
are required by subsection (2) to prepare a report on the review including an assessment of the
extent to which the strategy has been complied with and may prepare a revised strategy If a
decision is taken following such a review not to prepare a revised strategy the Scottish Ministers
must set out their reasons for that decision
134 Subsection (4) places a duty on the Scottish Ministers to consult with those likely to have
an interest in the strategy before preparing or reviewing the strategy Those likely to have an
interest include but are not limited to businesses support agencies faith based groups etc
135 Subsection (5) requires the Scottish Ministers to publish and lay before the Scottish
Parliament each strategy and report prepared under this section
Section 33 Duty to co-operate on strategy
136 Section 33 provides that Scottish public authorities as specified in regulations that may
be made by the Scottish Ministers must provide such information and assistance as the Scottish
Ministers may reasonably require and otherwise co-operate with the Scottish Ministers in the
preparation or review of the strategy A specified public authority could include for example
Police Scotland and local authorities
Section 34 Duty to notify and provide information about victims
137 Section 34 places a duty on specified Scottish public authorities to notify the chief
constable of the Police Service of Scotland about a person who is or appears to be a victim of
20
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
an offence under section 1 or section 4 This duty would not affect any other general right to
report information relating to crime
138 Subsection (2) requires that a notification relating to an adult is anonymised and does not
include any information that identifies the adult or enables the adult to be identified unless the
adult consents to that data being provided
139 Subsection (3) provides that the Scottish Ministers may by regulations specify the
Scottish public authorities who are to be subject to this duty and may make provision about the
information to be included in the notification The regulations will be subject to the negative
procedure
PART 6 ndash FINAL PROVISIONS
Section 35 Offences by bodies corporate etc
140 Section 35 provides that where an offence under the Bill was committed by a body
corporate or a Scottish partnership or other unincorporated association and it is proved that the
offence was committed with the consent or connivance of or was attributable to any neglect on
the part of a relevant individual or someone purporting to be acting in the capacity of a relevant
individual that individual as well as the body corporate partnership or unincorporated
association commits the offence and is liable to be proceeded against and punished accordingly
141 Subsection (2) defines what is meant by a ―relevant individual for the purpose of this
section
Section 36 Interpretation
142 Section 36 defines certain terms for the purposes of the Bill for example the definition
of ―travel
Section 37 Regulations
143 The Scottish Ministers are given various powers under this Bill to make regulations
Section 37 provides for the parliamentary procedure which is to be applicable in relation to each
of those powers
Section 38 Ancillary provision
144 Section 38 provides that the Scottish Ministers may make regulations containing such
incidental supplementary consequential transitional transitory or saving provision as they
consider necessary or expedient for the purposes of or in connection with the provisions of the
Bill
21
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
Section 39 Minor and consequential amendments
145 Section 39 introduces the schedule which makes minor amendments and amendments
consequential on the provisions of the Bill Given their replacement in Part 1 of the Bill the
schedule repeals the current offences in relation to human trafficking (section 22 of the 2003 Act
and section 4 of the 2004 Act) and slavery servitude and forced or compulsory labour (section
47 of the 2010 Act)
Section 40 Crown application
146 Section 40(1) provides that none of the provisions made by or under the Act are capable
of making the Crown criminally liable In accordance with subsection (2) enforcement of
offences against the Crown is to be done by the Scottish Ministers or any other public body or
office-holder with responsibility for enforcing the provision applying to the Court of Session for
a civil declarator of non-compliance This provision does not apply to persons in the public
service of the Crown
Section 41 Commencement
147 Section 41 provides that sections 36 37 38 40 41 and 42 of the Bill come into force on
the day after Royal Assent All other provisions are to come into force on a day appointed by
regulations made by the Scottish Ministers
22
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
FINANCIAL MEMORANDUM
INTRODUCTION
1 This document relates to the Human Trafficking and Exploitation (Scotland) Bill (―the
Bill) introduced in the Scottish Parliament on 11 December 2014 It has been prepared by the
Scottish Government to satisfy Rule 932 of the Parliamentrsquos Standing Orders It does not form
part of the Bill and has not been endorsed by the Parliament
2 The purpose of the Bill is to consolidate and strengthen the existing criminal law against
human trafficking and exploitation and enhance the status and support provided to victims Bill
provisions are in the following Partsmdash
Part 1 (Offences) includes provision on the creation of a single offence of human trafficking
for all types of exploitation of both adults and children establishes statutory aggravators of
human trafficking for use with other crimes and reframes the current standalone offence of
slavery servitude and forced or compulsory labour
Part 2 (Protection of victims) includes provision on prosecutorial guidelines for the
prosecution of victims and provision about the support and assistance to which adult victims
are entitled
Part 3 (Confiscation of property) includes provision on detention and forfeiture of property
and proceeds of crime
Part 4 (Trafficking and exploitation prevention and risk orders) includes provision on
two new preventive orders the trafficking and exploitation prevention order and the
trafficking and exploitation risk order
Part 5 (Strategy and reporting) includes provision on the trafficking and exploitation
strategy and the duty on specified Scottish public authorities to notify and provide
information about victims
Part 6 contains general and ancillary provisions
3 This Financial Memorandum considers the financial implications of each of the elements
of the Bill where relevant
BACKGROUND
4 Before considering the financial implications associated with the specific provisions
within the Bill it is important to consider both the current estimated extent of human trafficking
in Scotland and existing activity by public bodies and others in response to this issue
23
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
Extent of human trafficking in Scotland
5 Human trafficking is by its nature a hidden crime The National Referral Mechanism
(NRM) is the process set up by the UK Government to identify and support victims of trafficking
in the UK The NRM is also the mechanism by which the UK Human Trafficking Centre
collects data about potential victims of trafficking Information about suspected child and adult
victims of human trafficking is referred by relevant ―first responder organisations such as the
police and third sector bodies for example Migrant Help and the Trafficking Awareness Raising
Alliance (TARA) Referrals relate to victims trafficked from outside and within the UK The
table below summarises the most recent available information on NRM referrals from first
responder organisations in Scotland
Table 1 Recent referrals from first responders in Scotland of potential child and adult
human trafficking victims to the National Referral Mechanism
2012 2013
Adults 67 77
Children 29 22
Total 96 99
of all UK Referrals 8 6
Source National Crime Agency National Referral Mechanism Statistics 2012 and 20131
6 Various reports confirm that the number of victims referred through the NRM is likely to
be a significant underestimate of the actual number of potential victims of trafficking For
example the Equality and Human Rights Commission Inquiry into Human Trafficking in
Scotland (2011) noted ―estimates of identified potential victims do not reflect what is likely to be
a much greater number of unidentified victims2
7 The UK National Crime Agency (NCA) Strategic Assessment of the Nature and Scale of
Human Trafficking in the UK3 aims to provide an indication of the nature and scale of human
trafficking beyond the number of referrals to the NRM The assessment is produced using
intelligence held by the NCA the NRM and intelligence information collected from agencies
such as Police Scotland the Home Office Gangmastersrsquo Licensing Authority and non-
government organisations The assessment removes information of potential victims referred to
the NRM who have received a negative ―reasonable grounds or ―conclusive decision (ie it
has been confirmed that they are not victims of trafficking) or duplicate information about
individuals (ie the same person has been referred more than once or by more than one agency)
to show a total number of ―unique potential victims of trafficking The NCA Assessment for
2013 indicated that there were significantly more unique potential victims of human trafficking
identified across the UK than the numbers referred to the NRM even excluding those that
received a negative decision and that the number of unique victims was increasing
1 httpwwwnationalcrimeagencygovukpublications399-nca-strategic-assessment-the-nature-and-scale-of-
human-trafficking-in-2013file 2httpwwwequalityhumanrightscomsitesdefaultfilesdocumentsScotlandHuman_Trafficking_in_Scotland_inq
uiry_into_human_trafficking_in_scotland-full-report_pdf_pdf 3 httpwwwnationalcrimeagencygovukpublications399-nca-strategic-assessment-the-nature-and-scale-of-
human-trafficking-in-2013file
24
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
Table 2 Comparison of recent UK referrals to the National Referral Mechanism and the
National Crime Agency Strategic Assessment of the Scale of Human Trafficking
2012 2013 Change
Referred to NRM 778 1095 +41
NCA Assessment No of
Unique Potential Victims
Identified
2255 2744 +22
Source National Crime Agency Strategic Assessment of the Nature and Scale of Human
Trafficking in the UK4
8 For Scotland the NCA Assessment for 2013 identified 55 unique potential victims of
human trafficking compared with 99 referrals to the NRM It is not known why in contrast to
the position in England and Wales the NCA Assessment for Scotland is lower than the NRM
referrals although it will exclude potential victims who received a negative conclusive decision
and duplicate referrals However these numbers must be treated with significant caution There
remains strong conviction amongst law enforcement bodies and victims organisations that there
are more victims of trafficking than are identified and that even once identified victims are
often unwilling to engage with authorities or identify themselves as having been trafficked For
the purpose of this Financial Memorandum the Scottish Government has accepted the NCA
assessment that there are likely to be between two and three times as many potential victims of
trafficking as are currently identified through the NRM This assessment is based on the Scottish
Governmentrsquos best understanding of the hidden nature of this crime and the known reluctance of
some victims to identify their trafficked status or to engage with public authorities
Criminal justice response to human trafficking and exploitation
9 There have been relatively few prosecutions and convictions for human trafficking
offences under existing criminal justice legislationmdash
The Criminal Justice (Scotland) Act 20035 (―the 2003 Act) provides for offences of
trafficking for the purposes of exploitation by way of prostitution
The Asylum and Immigration (Treatment of Claimants etc) Act 20046 (―the 2004
Act) provides for offences of trafficking for labour and other forms of exploitation
The Criminal Justice and Licensing (Scotland) Act 20107 (―the 2010 Act) amended
and extended the 2003 and 2004 Acts and created a standalone offence of holding
someone in slavery or servitude or requiring a person to perform forced or
compulsory labour
10 The first successful convictions for human trafficking in Scotland were in 2011 under
section 22 of the 2003 Act for trafficking for the purposes of prostitution During 2013 a total of
four people were convicted of human trafficking offences - one person under section 22 of the
2003 Act and three people under section 4 of the 2004 Act for trafficking for forced marriage
4 httpwwwnationalcrimeagencygovukpublications399-nca-strategic-assessment-the-nature-and-scale-of-
human-trafficking-in-2013file 5 httpwwwlegislationgovukasp20037
6 httpwwwlegislationgovukukpga200419
7 httpwwwlegislationgovukasp201013
25
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
The average custodial sentence length for those convicted of trafficking offences was 847 days
(just under two years and four months) as well as any confiscation order imposed
11 Although the number of convictions for trafficking offences has been small police and
the Crown Office and Procurator Fiscal Service (COPFS) have confirmed that even though it is
not possible to always prove the trafficking offence where a credible suspicion exists people
suspected of involvement with trafficking can and often are prosecuted and convicted for other
crimes such as crimes associated with prostitution forced marriage immigration offences and
drugs offences etc
12 Police Scotland has established a dedicated National Human Trafficking Unit to enhance
the police response to human trafficking through awareness raising intelligence gathering
training and providing divisions with advice and specialist knowledge The COPFS has
appointed dedicated expert fiscals to prosecute human trafficking offences
Support for victims of trafficking
13 The Scottish Government currently allocates direct grant funding to non-government
organisations to provide and facilitate immediate support and assistance to the adult victims of
human trafficking This support can include immediate safe accommodation psychological
support assistance in accessing medical treatment material assistance interpretation and
translation and assistance either with repatriation or securing longer-term access to mainstream
services and support such as welfare benefits and housing The provision of support and
assistance is not conditional on the potential victim being willing to participate in the criminal
justice process Under the NRM victims of trafficking are guaranteed ―a recovery and reflection
period to recover from their experience escape the influence of those alleged to have trafficked
or exploited them and consider whether to engage with authorities The Council of Europe
Convention on Action Against Trafficking in Human Beings8 provides for a reflection period of
at least 30 days for all trafficked victims when there are reasonable grounds to believe that the
person concerned is a victim The current minimum recovery and reflection period in Scotland
and the rest of the UK is 45 days
14 In 2013-14 total grant funding of pound723000 was provided by the Scottish Government
towards the costs of ensuring immediate support and assistance for the adult victims and
potential victims of trafficking in Scotland This funding was provided through two non-
government organisationsmdash
the TARA Service which works with women aged 18 years and over across
Scotland where there are concerns that they have been trafficked for commercial
sexual exploitation and
Migrant Help a UK-wide organisation providing support and advice services to
migrants including new asylum claimants refugees EU nationals etc
15 Support for the child victims of trafficking is co-ordinated by local authorities as part of
their child protection arrangements and in line with the policy intention that children remain
8 httpwwwcoeinttdghlmonitoringtraffickingdocsconvntnCETS197_enasp
26
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
children first and that their needs should be treated accordingly The Scottish Government has
produced a toolkit for agencies working with children and young people to ensure that staff are
able to identify trafficked children and make appropriate referrals so that victims can receive
protection and support The toolkit is designed to be used in conjunction with National Child
Protection Guidance9 which was first published in 2010 and refreshed in 2014 and other
relevant national and international guidance Information about current expenditure on child
victims of trafficking is not recorded separately from information about wider expenditure on
child protection services
Lord Advocate guidance on prosecution policy
16 In his letter of 21 January 2013 to the Scottish Parliament European and External
Relations Committee10
the Lord Advocate set out the current arrangements for fiscals
considering the prosecution of a confirmed or potential victim of human trafficking where it is
believed or claimed that the crime was committed as a direct consequence of the personrsquos
trafficked status The letter set out the basis for the current Lord Advocatersquos guidance to
prosecutors including the presumption against the prosecution of a credible trafficking victim
for crimes that arise as a consequence of the victimrsquos trafficked status
Human trafficking strategic approach awareness raising and training
17 The first Scottish Human Trafficking Summit was hosted by the Cabinet Secretary for
Justice in October 2012 The summit brought together key law enforcement public private and
third sector organisations with an interest in human trafficking Following the summit a number
of strategic collaborative actions were agreed and progressed including with reference to
awareness raising and training for frontline staff data collection and analysis identification care
and support for both child and adult victims of trafficking and enhancing enforcement
18 One specific workstream related to awareness raising and training of front-line staff
likely to come into contact with trafficking victims or potential instances of trafficking
Following the summit Police Scotland with support from the Scottish Government and others
prepared published and circulated widely an awareness raising leaflet ndash Reading the Signs11
ndash to
assist police officers and staff in other front line posts in identifying the signs of potential
trafficking The Scottish Government also participated with the UK Government in a UK-wide
public awareness raising campaign about modern slavery and trafficking
19 In addition to general awareness raising specific training material was prepared for key
front-line staff For example all police officers were required to undertake an e-learning course
on human trafficking A special leaflet for health workers was prepared and circulated by NHS
Health Scotland An e-learning module for health workers about their role in identifying and
9 httpwwwscotlandgovukPublications2014053052
10httpwwwscottishparliamentukS3_EuropeanandExternalRelationsCommitteeGeneral20DocumentsLetterfro
mTheLordAdvocatepdf 11
httpwwwscotlandpoliceukassetspdf174967human-traffickingview=Standard
27
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
responding to victims of trafficking was made available through the National Gender Based
Violence and Health Programme12
IMPACT OF SPECIFIC PROVISIONS
PART 1 - OFFENCES
Single trafficking offence
20 The Bill establishes a new single offence of human trafficking for all types of
exploitation for both adults and children replacing existing separate criminal offences (see
paragraph 9 above) As noted above to date there have been relatively small numbers of
prosecutions under existing trafficking offences
21 The maximum penalty for conviction on indictment for the single trafficking offence will
be life imprisonment compared with a maximum of 14 years for the current separate offences
Although it will be for the court to decide how to sentence people convicted under the new single
offence in any given case it is likely that the availability of a higher maximum sentence will
have cost implications for the Scottish Prison Service (SPS)
Revised slavery servitude and forced labour offence
22 The Bill will also repeal and replace the existing exploitation offence within section 47 of
the 2010 Act which criminalises holding someone in slavery or servitude or requiring them to
perform compulsory or forced labour The offence will be revised and strengthened to allow the
court to consider in assessing whether a person has been a victim of an offence the victimrsquos
characteristics such as age physical or mental illness disability or where relevant family
relationships The maximum penalty for the offence will be increased from 14 years for the
current offence to life imprisonment for a conviction on indictment
Statutory aggravators
23 The Bill makes provision for statutory aggravators which apply in cases where an
accused person commits an offence connected with human trafficking and for when the offence
is committed in connection with the accusedrsquos position as a public official The court must take
the aggravation into account in determining the appropriate sentence if it is proved that the
offence is aggravated in this way The statutory aggravator is not anticipated to have any
substantial financial implications for public private or third sector bodies or for individuals
Costs on the Scottish Administration
24 Consolidating and clarifying the existing criminal law on trafficking and exploitation
alongside other measures arising from the Bill and the trafficking and exploitation strategy
including training and awareness raising and support for victims should increase the potential
for successful investigations prosecutions and convictions of human trafficking and exploitation
offences There have been six successful prosecutions for a specific trafficking offence to date in
Scotland with an average custodial sentence length of two years and four months against a
12
httpwwwgbvscotnhsuk
28
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
maximum possible sentence of 14 years The maximum number of prosecutions in any one year
was four individuals in two separate cases
25 Police and prosecutors already have in place specialist resources for investigating and
prosecuting human trafficking and exploitation offences and these provisions will not add to
these costs Law enforcement agencies have confirmed that whilst the number of prosecutions
for specific trafficking offences has been low where victims are identified but are unwilling to
testify individuals suspected of trafficking and exploitation will be prosecuted in court for other
related offences The Lord Advocate has identified that ―If we donrsquot have the evidence [to
prosecute for a specific human trafficking offence] we prosecute for fraud ID theft or asylum
and immigration offences13
26 The Scottish Government does not anticipate therefore significant additional cost
implications for law enforcement agencies or courts as cases will often proceed with a
trafficking offence alongside or in place of other related offences For the same reason the
Scottish Government does not anticipate significant additional cost on the Scottish Legal Aid
Board (SLAB) However if it is assumed that the number of successful trials proceeding in any
single year doubles from two to four there would be some additional costs on the COPFS the
Scottish Court Service (SCS) and SLAB based on the average unit costs for cases proceeded
either through Sheriff Court Solemn procedure or through the High Court These estimated costs
depending on whether cases are proceeded through the High Court or Sheriff Court solemn
procedure are illustrated in the table below
Table 3 Estimated unit costs of additional trial procedures through either High Court or
Sheriff Court solemn procedure (pound000)
Average prosecution
costs per procedure
(COPFS)
Average court costs
per procedure (SCS)
Average legal aid
costs per procedure
(SLAB)
Sheriff Court solemn
procedure (pound000) pound49 pound19 pound16
High Court (pound000) pound556 pound90 pound135
Estimated average
costs of 2 additional
trial procedures 4
accused per annum
(pound000)
pound99-pound1112 pound38-pound180 pound64-pound540
Source costs of the Criminal Justice System in Scotland Dataset (2013)14
27 There will also be costs to the SPS both through any increase in the number of successful
convictions for trafficking and exploitation offences and an anticipated increase in the average
length of custodial sentence for these crimes It is not possible to know for certain the total
13
httpwwwdailyrecordcouknewsscottish-newsonly-three-successful-prosecutions-brought-4457684 14httpwwwscotlandgovukTopicsStatisticsBrowseCrimeJusticePublicationscostcrimjustsc
otcostcrimjustdatasethttpwwwscotlandgovukTopicsStatisticsBrowseCrimeJusticePublicationscostcrimj
ustscotcostcrimjustdataset
29
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
number of future convictions or what sentencing decisions might be taken by courts in individual
cases
28 The table below illustrates the potential cost implications of either maintaining or
increasing the current maximum number of convictions in any individual year from four to eight
convictions For the purpose of the calculation it is assumed that the average custodial sentence
length for trafficking and exploitation offences will increase from two years and four months
(classified as a short-term sentence) to over four years (classified as a long-term sentence) as
increasing the maximum sentence to life imprisonment is anticipated to increase the average
sentence for a trafficking offence The estimated average annual cost of a prison place based on
SPS figures is pound42500 Taking account of the current early release arrangements for long-term
prisoners and the overlapping of individual sentences would result in an estimated increase of 8
to 21 total prison places each year after four years ndash ie with an additional four people receiving
custodial sentences each year and released by the Parole Board at the halfway point of their
sentence or automatically at the two-thirds point The total costs to the SPS will be within a
range of pound340000 to pound890000 These costs will fit within the overall budget costs to the SPS
As at 17 October 2014 there were 7731 people in custody in Scotland An additional 21 places
accounts for 03 of the total prison population
Table 4 Estimated range of costs to the Scottish Prison Service from increasing the
number and average length of successful prosecutions for trafficking offences
Year 1 Year 2 Year 3 Year 4
Additional Prison places 0-4 4-12 8-17 8-21
Additional Cost (pound000) pound0-pound170 pound170- pound510 pound340-pound720 pound340-pound890
Table 5 Estimated range of combined costs for trial procedures and prison places
Year 1 Year 2 Year 3 Year 4
Additional Cost (pound000) pound20-pound353 pound190- pound693 pound360-pound900 pound360-pound1073
Costs on other bodies individuals and businesses
29 There will be no new costs falling on other bodies individuals and businesses as a
consequence of these sections but see the section below with reference to victim support
Costs on local authorities
30 There will be no new costs falling on local authorities as a consequence of these specific
sections
PART 2 - PROTECTION OF VICTIMS
Duty on the Lord Advocate to publish guidance about the prosecution of credible trafficking and
exploitation victims who have committed offences
Costs on the Scottish Administration
31 As noted above the Lord Advocate already prepares and publishes guidance to fiscals
about the prosecution of credible victims of human trafficking for crimes committed as a direct
30
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
consequence of their trafficking status The requirement to publish such guidance would in
future be statutory However there will be no new costs on the Scottish Government or the
COPFS as a consequence of placing the requirement for the Lord Advocate to issue this
guidance on a statutory basis
Costs on other bodies individuals and businesses
32 There will be no new costs falling on other bodies individuals and businesses as a
consequence of these sections
Costs on local authorities
33 There will be no new costs falling on local authorities as a consequence of these sections
Ensure the rights of victims to access and support
34 The Bill will place a statutory duty on the Scottish Ministers to secure the provision of
relevant immediate support and recovery services for adult victims of trafficking subject to an
assessment of need The Bill will specify those victims or potential victims entitled to support
and the minimum time periods during which such services should be provided Specifically the
Bill will require Ministers to provide support and assistance based on each individualrsquos assessed
needs during the recovery and reflection period (currently 45 days) during which the
individualrsquos trafficking status is determined The Bill specifies minimum support and assistance
that should be considered as part of the assessment including access to housing treatment
interpretation services etc The Scottish Ministers have the flexibility to provide support and
assistance outwith the specified reflection and recovery period where this is considered
appropriate
35 As noted above the Scottish Ministers already provide grant funding totalling pound723000
to third sector organisations to assist identified adult potential victims of trafficking Provision of
support to adult victims will be placed on a statutory basis The number of adult potential victims
of trafficking referred through the NRM during 2013 was 77 although not all of these will have
requested assistance or received the full range of support services It is assumed that other
actions arising from the Bill including the single offence and publication of the trafficking and
exploitation strategy will result over time in an increase in identified victims and requests for
assistance and support
Costs on the Scottish Administration
36 The Scottish Government anticipates that improved awareness raising and training of
front-line staff will result in an increase in the number of victims identified over time It is not
possible to know how quickly this improvement will be achieved However between 2012 and
2013 the number of potential identified victims across the UK identified through the NCA
strategic assessment and NRM increased by 22 and 41 respectively Given the need for
awareness raising and training to impact the Scottish Government does not anticipate a similar
scale of increase in the immediate term but the Government considers it reasonable to anticipate
a possible increase of between 10 and 20 per annum in the overall number of requests for
assistance and support each year over the next four years Assuming a similar mix of needs as
31
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
current victims the increased costs to the Scottish Government on top of existing funding
would range between pound290000 to pound580000 per annum by year four
Table 6 Estimated range of costs increases for victim support and assistance (pound000)
Year 1 Year 2 Year 3 Year 4
Additional Cost (pound000) pound0-pound140 pound140-pound280 pound220-pound430 pound290-pound580
Costs on other bodies individuals and businesses
37 There will be no additional costs on other public bodies individuals or businesses
associated with these specific provisions There will be no direct additional costs falling on third
sector organisations as a consequence of the specific provisions It is likely however that all or
part of the additional funding identified above will be directed by the Scottish Government
through relevant third sector organisations with the expertise to provide immediate support and
protection to victims
Costs on local authorities
38 The Bill creates no new legislative requirements for the delivery of childrenrsquos services
recognising that this already exists It is therefore not anticipated that the Bill will result in any
quantifiable additional costs on local authorities or other public bodies as a result of support for
child victims Child victims of trafficking are supported as part of the Getting It Right for Every
Child (GIRFEC) approach any child whether identified as trafficked or not will be assessed on
the basis of its needs It is anticipated that as a consequence of the strategy (for which the Bill
provides) that more children may be identified as trafficked It is noted however that various
reports including most recently the UK Governmentrsquos NRM Review Report15
have found that
children who are already receiving support from relevant authorities in the UK are often not
identified as trafficked victims because of lack of awareness of the referral process It may be
that actions arising from the development of the strategy and dialogue with stakeholders will
give rise to additional activity or costs with reference to child victims of trafficking but these are
not known and cannot be estimated at this time
PART 3 - CONFISCATION OF PROPERTY
39 The Bill will provide police with powers to detain the property such as cars boats etc of
a person arrested for a trafficking offence This power will be exercised at the time of arrest and
is not expected to impose any additional costs on the police or others
Costs on the Scottish Administration
40 There will be no additional costs on the Scottish Government as a result of these
provisions Individuals can apply to the court to have vehicles ships or aircraft released from
detention This will be considered as part of the overall case and will not add to the costs to the
criminal justice system
15
httpsnrmhomeofficegovuk
32
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
Costs on other bodies individuals and businesses
41 There will be no additional costs on other public bodies individuals or businesses
including Police Scotland as a result of these specific provisions
Costs on local authorities
42 There will be no additional costs on local authorities as a result of these specific
provisions
PART 4 - TRAFFICKING AND EXPLOITATION PREVENTION AND RISK ORDERS
Introduce new measures to disrupt and prevent trafficking and exploitation
43 The Bill will introduce two new civil orders and associated interim orders to assist in
preventing trafficking and exploitation Trafficking and Exploitation Prevention Orders (TEPOs)
and Trafficking and Exploitation Risk Orders (TEROs) Where an individual has been convicted
of a trafficking or exploitation offence or an offence with a statutory trafficking aggravator a
TEPO may be imposed by a court where there is a risk that that individual may commit a further
human trafficking offence and it is necessary to make the order to protect people from the
physical or psychological harm which might occur if such an offence were committed The
TEPO will prevent the individual from engaging in activities described in the order Where a
person has not been convicted of a trafficking or exploitation offence but a court considers that
the person presents a significant risk of harm to others through the individual committing a
trafficking or exploitation offence the court can impose a TERO restricting specific activities or
imposing requirements These orders will be civil but breach of an order will constitute a
criminal offence with a maximum penalty of five years in prison available to the court
44 The Bill will categorise the trafficking and exploitation offences as lifestyle offences in
order to automatically trigger provisions within the Proceeds of Crime Act 2002 (―the 2002
Act) The definition of an offence as a ―lifestyle offence allows for proceedings under the
2002 Act to confiscate assets or monies from the individual convicted of the offence
Costs on the Scottish Administration
45 The purpose of TEPOs and TEROs is to prevent criminal activity associated with
trafficking and exploitation from arising There will be some cost implications for law
enforcement organisations which will need to monitor the terms of any order imposed by the
courts However these will be offset by the savings made from being able to intervene at an
early stage of criminality if an order has been breached For the equivalent civil orders within the
UK Modern Slavery Bill the UK Government has estimated potential net savings of between
pound130000 and pound1090000 per annum The Scottish Government has not incorporated any
savings for the purpose of Scottish legislation but expects the costs of implementing TEPOs and
TEROs and detention powers to be at least cost neutral for the Scottish Administration and other
public bodies
33
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
46 The Bill will give courts powers to impose a TEPO at the time of sentencing There will
be no immediate additional costs for the courts or COPFS associated with TEPOs imposed as
part of sentencing The Chief Constable of Police Scotland will also be able to apply to the court
for a TEPO to be imposed on a relevant offender previously convicted of a trafficking offence
There will be costs to Police Scotland in making the application and to the SCS and to SLAB in
considering the application As there have been only six previous convictions for trafficking
offences in Scotland the Scottish Government expects the number of applications for TEPOs for
previous convictions to be small one-off and will not add to the overall costs of the criminal
justice system The Chief Constable of Police Scotland can also apply to the court for a TERO
against an individual where it is considered that that individual is likely to commit a trafficking
offence
47 Looking at the equivalent costs for similar civil orders eg Sexual Offences Prevention
Orders the total costs to the SCS the COPFS and SLAB of applying for a TERO or post-
sentencing TEPO are estimated at between pound1000 and pound6000 per order It is not possible to
know how many TEPOs or TEROs might be applied for but assuming a number half the level of
the estimated maximum number of potential convictions for trafficking offences each year (four
to eight) would give estimated costs of between pound2000 (2 x pound1000) and pound24000 (4 x pound6000)
per annum
48 There will be costs to Police Scotland in monitoring TEPOs and TEROs whether
imposed at the time of sentence or by application but this will sit alongside Police Scotlandrsquos
existing crime prevention and investigative responsibilities and is not expected to add to
manpower costs
49 In addition to the costs of imposing and monitoring TEPOs and TEROs there will be
costs associated with prosecuting a breach of a TEPO or TERO Analysis in England and Wales
indicates that breaches of equivalent Serious Crime Prevention Orders are relatively low
Assuming one breach per annum the total combined costs to the COPFS the SCS and SLAB
would be between pound8400 and pound78100 per annum (see the combined costs for either sheriff
court or High Court procedures set out in Table 3 above) Assuming a maximum sentence of
five years the costs to the SPS for additional prison places would be between pound85000 and
pound127500 per annum (ie the pound42500 average costs of a prison place times either two or three
places depending on whether offenders are released early at the halfway or two-thirds point of
their sentence)
50 It is important to remember however that the purpose of TEPOs and TEROs is to
prevent further trafficking and exploitation offences occurring A TEPO or TERO will only be
imposed where a court considers that there is a credible risk of an individual committing such a
crime Any costs associated with the imposition and breach of TEPOs and TEROs needs to be
offset against the potential costs of prosecutions If each TEPO or TERO prevents the costs of a
conviction for an offence as set out in Part 1 above the costs to the Scottish Administration
would be at least cost neutral in terms of saved court and prison places expenditure
34
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
Costs on other bodies individuals and businesses
51 There will be no costs on other bodies businesses or other individuals as a consequence
of these sections
Costs on local authorities
52 There will be no new costs on local authorities as a consequence of these sections
PART 5 - STRATEGY AND REPORTING
Ensure a strategic cross-agency approach to tackling trafficking
53 The Bill places a duty on the Scottish Ministers to prepare publish and regularly review
and update a trafficking and exploitation strategy to assist in ensuring a co-ordinated and
strategic approach to this issue The provisions place a duty on Ministers to consult with such
organisations and individuals as they consider to have a relevant interest in the issues of human
trafficking and exploitation The Bill places a duty on relevant public bodies to be named in
regulations to assist in the preparation and review of the strategy
54 The Bill will place a duty on relevant public authorities to provide anonymised data about
potential human trafficking and exploitation victims to Police Scotland
Costs on the Scottish Administration
55 Activity arising from these provisions within the Bill will build on the activity and
current resources already committed to this area of work
56 Based on similar activities the estimated additional costs to the Scottish Ministers of
preparing and reviewing a trafficking and exploitation strategy will be approximately pound25000
every three years Alongside the preparation and publication of the strategy the Scottish
Ministers would also propose to support additional awareness raising and training activity to
build on the existing awareness raising and training activity already undertaken by relevant
organisations including the NHS Police Scotland and COPFS Consideration would be given to
how best to co-ordinate these resources alongside existing expenditure and activity For the
purposes of the Financial Memorandum and based on current activity additional costs on top of
existing activity are estimated at approximately pound100000 to pound250000 per annum over the first
four years of the Bill This is based on the best estimated costs of preparing and publishing
publicity and guidance material averaged over a number of years The exact costs will depend
on decisions taken in dialogue with stakeholders as part of the preparation of the strategy
57 The Scottish Government anticipates that the costs to relevant public authorities of
providing anonymised data about potential human trafficking victims to Police Scotland will be
marginal Costs to Police Scotland of collating this data will form part of their existing
intelligence gathering activity
35
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
Costs on other bodies individuals and businesses
58 There will be some costs on other bodies individuals and businesses in engaging with the
Scottish Ministers in the preparation and publication of the Strategy For business and
individuals this will be voluntary depending on their willingness to engage For public bodies
their level of engagement will depend on the relevance of the issue of trafficking and
exploitation to their work and their potential contribution to combating this behaviour Any
additional costs are expected to fit within or sit alongside their existing responsibilities for
example with reference to promoting and ensuring equalities and the application of human
rights obligations
Costs on local authorities
59 There will be costs on local authorities associated with engaging in the preparation and
review of the trafficking and exploitation strategy and in awareness raising and training of front-
line staff The additional costs should be marginal on top of the existing guidance and activity
already in place with reference to the identification and support of potential child victims of
trafficking The aim will be to minimise costs for other front-line local authority staff by
adapting the general awareness raising and training materials described above
SUMMARY
60 The table below provides a summary of the costs of each element of the Bill as described
above
Table 7 Summary table of costs for each aspect of the Bill (pound000)
Year 1 Year 2 Year 3 Year 4
Clarifying amp
Strengthening the
Criminal Law ndash Para 28 pound20-pound353 pound190- pound693 pound360-pound900 pound360-pound1073
Ensure the rights of
victims to access and
support - Para 36 pound70-pound140 pound140-pound280 pound220-pound430 pound290-pound580
Introduce new measures to
disrupt and prevent
trafficking pound016
pound0 pound0 pound0
Ensure a strategic cross
agency approach to
tackling trafficking ndash Para
56 pound125-pound275 pound100-pound250 pound100-pound250 pound125-pound275
TOTAL pound215-pound768 pound430-pound1223 pound680-pound1580 pound775-pound1928
16
The Scottish Government considers that the overall costs are at least cost neutral ndash see paragraphs 45 to 50
36
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December
SCOTTISH GOVERNMENT STATEMENT ON LEGISLATIVE
COMPETENCE
On 11 December 2014 the Cabinet Secretary for Justice (Michael Matheson MSP) made the
following statement
―In my view the provisions of the Human Trafficking and Exploitation (Scotland) Bill
would be within the legislative competence of the Scottish Parliament
mdashmdashmdashmdashmdashmdashmdashmdashmdashmdash
PRESIDING OFFICERrsquoS STATEMENT ON LEGISLATIVE
COMPETENCE
On 11 December 2014 the Presiding Officer (Rt Hon Tricia Marwick MSP) made the following
statement
―In my view the provisions of the Human Trafficking and Exploitation (Scotland) Bill
would be within the legislative competence of the Scottish Parliament
37
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December
SP Bill 57ndashEN Session 4 (2014)
HUMAN TRAFFICKING AND EXPLOITATION
(SCOTLAND) BILL
EXPLANATORY NOTES
(AND OTHER ACCOMPANYING DOCUMENTS)
Parliamentary copyright Scottish Parliamentary Corporate Body
Information on the Scottish Parliamentrsquos copyright policy can be found on the website -
wwwscottishparliamentuk
Produced and published in Scotland on behalf of the Scottish Parliamentary Corporate Body by APS
Group Scotland
ISBN 978-1-78534-569-2
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
42 Subsection (1) provides that where there are reasonable grounds to believe that an adult is
a victim of human trafficking the Scottish Ministers must secure the provision of such support
and assistance as is necessary given the adultrsquos needs for the relevant period
43 Subsection (2) defines the relevant period It begins on the day it is determined there are
reasonable grounds to believe that the adult is a victim of human trafficking (paragraph (a)) and
ends on the earlier of either the end of a period specified in regulations made by the Scottish
Ministers (paragraph (b)(i)) or the date on which there is a conclusive determination that the
adult is or is not a victim of a human trafficking offence (paragraph (b)(ii))
44 Subsection (3) gives the Scottish Ministers discretion to provide support and assistance
outwith the mandatory period under subsection (2) The support and assistance may be provided
to the adult during the period when a competent authority is determining whether there are
reasonable grounds to believe that the person is a victim of human trafficking (paragraph (a)) It
may also be provided before the date on which there is a conclusive determination in relation to
the adult if the mandatory period has ended by then (paragraph (b)) or after that conclusive
determination for such period as Ministers think appropriate (paragraph (c))
45 Subsection (4) provides a non-exhaustive list of the kind of support and assistance that
may be provided under section 8 The list provides that support and assistance may be provided
in connection with (but not limited to) the followingmdash
accommodation
day to day living
medical advice and treatment
language translation and interpretation
counselling
legal advice
information about other services available to the adult and
repatriation
46 Subsection (5) provides that the Scottish Ministers must ensure that in securing the
provision of support and assistance assistance is only provided where the adult consents
(subsection (5)(a)) and that the provision of assistance is not made conditional on the adult
assisting with a criminal prosecution or investigation (subsection (5)(b))
47 Subsection (6)(a) describes when there are reasonable grounds to believe that an adult is a
victim of a trafficking offence for the purposes of securing support and assistance Subsection
(6)(b) describes what is meant by a ―conclusive determination that an adult is or is not a victim
of an offence of human trafficking for these purposes
48 Subsection (7) defines what is meant by the terms ―competent authority and ―the
Trafficking Convention for the purposes of this section
9
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
PART 3 - CONFISCATION OF PROPERTY
Detention and forfeiture
Section 9 Detention of vehicle ship or aircraft
49 Section 9 sets out the power of a constable to detain a vehicle ship or aircraft if a person
has been arrested for an offence of human trafficking
50 Subsection (1) describes the circumstances where a police constable may detain a vehicle
ship or aircraft Subsection (1)(a) provides that a constable may detain a vehicle ship or aircraft
if a person has been arrested for an offence of human trafficking and the constable has
reasonable grounds to believe that a forfeiture order would be made if the person arrested were
convicted of the offence (subsection (1)(b))
51 Subsection (2) provides for the duration of the detention of the property Subsection
(2)(a) provides that the vehicle ship or aircraft may be detained until a decision is taken as to
whether or not to begin solemn proceedings against the person arrested for the offence In
circumstances where solemn proceedings have begun the property may be detained until the
person is acquitted (subsection (2)(b)(i)) the person is convicted and a decision is made whether
or not to order forfeiture of the property under section 10 (subsection (2)(b)(ii)) or the
proceedings are otherwise concluded (subsection (2)(b)(iii))
52 Subsections (3) and (4) set out the circumstances in which solemn proceedings are to be
taken to have commenced and concluded for the purposes of this section
53 Subsection (5) lists the circumstances in which a person (including the accused) with a
relevant interest in the detained property may apply to the sheriff for release of the vehicle ship
or aircraft Subsection (6) sets out the sheriffrsquos power to order release subject to satisfactory
security being tendered
54 Subsection (7) provides that the sheriff may impose such other conditions as to the
release of the detained property as the sheriff thinks fit
Section 10 Forfeiture of vehicle ship or aircraft
55 Section 10 sets out the power of the court to order forfeiture of a vehicle ship or aircraft
used or intended to be used in connection with an offence of human trafficking
56 Subsections (1) to (3) provides that forfeiture of a vehicle ship or aircraft used or
intended to be used in connection with the offence of human trafficking may be ordered if a
person convicted on indictment of that offence when the offence was committedmdash
owned the vehicle ship or aircraft
was a director secretary or manager of a company which owned it
was in possession of it under a hire purchase agreement
10
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
was a director secretary or manager of a company which was in possession of it
under a hire purchase agreement
in relation to a vehicle was driving it
in relation to a ship or aircraft was the charterer of it or was acting as captain of it
57 Subsection (4) makes special provision about cases where a ship or aircraft is to be
forfeited but the offender does not own it and was not a director secretary or manager of a
company which owns it It provides that in those circumstances forfeiture of a ship or aircraft
may only be ordered if any one of the tests listed in this subsection is satisfied Subsection (4)(a)
provides that if a person who at the time the offence was committed owned the ship or aircraft
or was a director secretary or manager of a company which owned it knew or ought to have
known of the intention to use it in the course of the commission of the offence of human
trafficking then forfeiture of a ship or aircraft may be ordered Subsection (4)(b) provides that
in the case of a ship (other than a hovercraft) if its gross tonnage is less than 500 then forfeiture
of that ship may be ordered Subsection (4)(c) provides that in the case of an aircraft if the
maximum weight at which it may take off in accordance with its certificate of airworthiness is
less than 5700 kilogrammes then forfeiture of that aircraft may be ordered under this section
Protection is provided for particular categories of owner who due to the size of the ship or
aircraft in question or the circumstances in which it is used for trafficking do not know or
reasonably suspect or are unlikely to know or reasonably suspect that the ship or aircraft is
being used in that way There is a greater likelihood that an owner of a vehicle or smaller types
of ships or aircraft will have actual or constructive knowledge that their property is being or
intended to be used for the purposes of trafficking
58 Subsection (5) provides that forfeiture cannot be ordered without giving any person
claiming an interest in the relevant property the chance to make representations
Proceeds of crime
Section 11 Proceeds of Crime Act 2002 lifestyle offences
59 Section 11 amends Schedule 4 to the Proceeds of Crime Act 2002 (―2002 Act) to
categorise all trafficking and exploitation offences as lifestyle offences for the purposes of that
Act A conviction of a lifestyle offence triggers assumptions under the 2002 Act that the accused
has a criminal lifestyle and that the accusedrsquos property is recoverable as criminal proceeds
60 Section 11(a) amends Schedule 4 to the 2002 Act by substituting paragraph 4 thereof
with a list of all offences related to trafficking and thus categorising all such offences as lifestyle
offences for the purposes of the 2002 Act Section 11(b) amends the same Schedule by inserting
a new paragraph 4A to provide that an offence under section 4 of the Bill also constitutes a
lifestyle offence
11
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
PART 4 ndash TRAFFICKING AND EXPLOITATION PREVENTION AND RISK ORDERS
Trafficking and exploitation offences
Section 12 Relevant trafficking or exploitation offences
61 Section 12 provides a list of the relevant trafficking and exploitation offences for the
purposes of trafficking and exploitation prevention and risk orders made under the Act The list
includes repealed provisions as orders (other than orders on sentencing) may still be made with
reference to convictions under such provisions
62 Subsection (2) provides that the Scottish Ministers may modify by regulations the
offences contained in the list Under section 37(2) any such regulations are subject to the
affirmative procedure
Trafficking and exploitation prevention orders
Section 13 Prevention orders on sentencing
63 Section 13 provides that a court may instead of or in addition to dealing with the person
in any other way make a trafficking and exploitation prevention order (TEPO) on sentencing of
an adult
64 Subsection (1) sets out the three circumstances where the court may make a TEPO
against a person on sentencing The first is conviction of an adult of a relevant trafficking and
exploitation offence The second circumstance is acquittal of such an offence by reason of the
special defence set out in section 51A of the Criminal Procedure (Scotland) Act 1995 (which
provides a defence where a person is unable by reason of mental disorder to appreciate the nature
or wrongfulness of their conduct) The third circumstance is a finding of unfitness for trial in
relation to such an offence under section 53F of that Act (which provides that a person is unfit
for trial if it is established on the balance of probabilities that the person is incapable by reason
of a mental or physical condition of participating effectively in that trial) In relation to the third
circumstance there must also be a finding that the adult has done the act constituting the offence
65 Subsection (3) provides that the court may make a TEPO at its own instance or on the
motion of the prosecutor
66 Subsection (4) provides the test for making a TEPO on sentencing The court must be
satisfied that there is a risk that the person in respect of whom the order is to have effect may
commit another offence mentioned in section 12 and that it is necessary to make the prohibitions
and requirements in the order for the purpose of protecting persons generally or particular
persons from the physical or psychological harm which would be likely to occur if the person
committed such an offence
67 Subsection (5) provides a definition of ―the court for the purposes of this section
12
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
Section 14 Prevention orders on application
68 Section 14 provides that the chief constable may apply to a sheriff for a TEPO against an
adult
69 Subsection (2) sets out the appropriate sheriff to whom such an application should be
made
70 Subsection (3) sets out the tests for making a TEPO on application The sheriff must be
satisfied that the person in respect of whom the order is sought is a ―relevant offender
(subsection (3)(a)) that since the person first became a relevant offender the person has acted in
a way which means that there is a risk the person will commit a relevant trafficking or
exploitation offence (subsection (3)(b)) and it is necessary to make the prohibitions or
requirements in the order for the purpose of protecting persons generally or particular persons
from the physical or psychological harm which would be likely to occur if the person committed
such an offence (subsection (3)(c))
71 Subsection (4) provides that conduct which occurred before this section came into force
may be considered when determining whether there is a risk that a person may commit a relevant
trafficking offence
Section 15 Meaning of relevant offender
72 Section 15 defines what is meant by a ―relevant offender for the purposes of section 14
73 Subsection (2) provides that a person is a relevant offender if any of the court disposals
listed in the subsection have been made in the UK in relation to that person and in respect of a
relevant trafficking or exploitation offence (as set out in section 12 of the Bill)
74 Subsections (3) to (5) deal with findings of courts and tribunals outside the United
Kingdom Subsection (3) provides that a person is a relevant offender if under the law of a
country outside the United Kingdom a listed disposal is made in respect of a person in relation
to an offence which is equivalent to an offence listed in section 12 Subsections (4) and (5) set
out tests for determining whether an offence is equivalent to a relevant offence In particular
such offences are acts which constitute offences under the law of the country concerned and
which would constitute a relevant trafficking or exploitation offence under the law of Scotland if
done in the UK by a UK national or person habitually resident in Scotland or as regards the UK
(eg by virtue of the fact that travel was arranged into out of or within the UK)
75 Subsection (6) establishes a mechanism for determining whether an act constituting an
offence in a country outside the UK would constitute an offence under the law of Scotland
76 Subsection (8) provides that for the purposes of this section convictions acquittals
findings and cautions include those which took place before this section comes into force
13
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
Section 16 Contents of prevention orders
77 Section 16 makes provision about the prohibitions or requirements (or both) that may be
contained in a TEPO Each prohibition and requirement in a TEPO is for a fixed period and the
order itself is for a fixed period The order and the prohibitions and requirements may all be for
the same period However the Bill allows some requirements and prohibitions in the order to be
set for a period shorter than that of the order if that is appropriate
78 Subsection (2) provides that both the order and any prohibition or requirement in the
order must have a specified fixed period of at least five years The only exception to that
requirement relates to a prohibition on foreign travel and an order containing only a prohibition
on foreign travel (which is dealt with in section 17) and relates to a period of not more than five
years Subsection (4) provides that a TEPO may prohibit the person in respect of whom the
order is made from doing things or require that person to do things Different prohibitions and
requirements may have effect for different periods
79 Subsection (5) provides that if the court makes a TEPO in respect of a person already
subject to such an order the earlier order will cease to have effect
80 Subsection (6) defines what is meant by ―the court for the purposes of the section
Section 17 Prohibitions on foreign travel
81 Section 17 makes provision about prohibitions on foreign travel in TEPOs
82 Subsection (1) provides that a prohibition on foreign travel contained in a TEPO and
any TEPO which contains such a prohibition and no other prohibitions or requirements must be
for a fixed period of not more than five years
83 Subsection (2) defines a prohibition on foreign travel as a prohibition on travelling to
countries outside the UK (either by reference to particular countries or generally)
84 Subsection (3)(a) determines that a prohibition on foreign travel varied or renewed by
application under section 18 or 19 may be varied or renewed for further fixed periods of no more
than five years each time Subsection (3)(b) requires that an order containing only a foreign
travel restriction may be renewed for up to that fixed period
85 Subsection (4) sets out the requirement on a person in respect of whom a TEPO
containing a prohibition on foreign travel to all countries outwith the United Kingdom has been
made to surrender at a police station each passport that the person has
86 Subsection (5) provides that any passport surrendered must be returned as soon as is
reasonably practicable after the person ceases to be subject to such a prohibition on foreign
travel Circumstances where this subsection would not apply are provided for at subsection (6)
for example where a passport has already been returned to the relevant authority
14
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
Section 18 Orders on sentencing variation renewal and discharge
87 Section 18 makes provision about varying renewing and discharging TEPOs made on
sentencing
88 Subsections (2) to (4) set out general powers in this context The person in respect of
whom the TEPO is made or the prosecutor may apply for variation renewal or discharge of such
a TEPO That application is to be made to the High Court where that court made the order and
to the sheriff otherwise Subsection (4)(b) makes provision about shrieval jurisdiction in this
connection Where the relevant court receives such an application it may vary renew or
discharge individual prohibitions or requirements or add new prohibitions or requirements it
may renew the whole order or it may discharge the whole order
89 Subsection (5) provides that the court must before making an order under this section
give an opportunity to make representations to the person in respect of whom the order is made
the prosecutor and the chief constable Subsection (6) provides that after taking into account
any such representations the court may then make such order as it thinks appropriate
90 Subsection (7) sets out the tests the court must consider when deciding whether to vary
renew or discharge TEPOs made on sentencing (including by adding new prohibitions or
requirements) or any prohibitions or requirements within them Subsection (7)(a) applies the
tests for the making of a TEPO to any variation (including an increase or a relaxation of a
requirement or prohibition) renewal or addition Subsection (7)(b) applies those tests to any
discharge of a prohibition or requirement or of an order
91 Subsection (8) makes it clear that an order varying or renewing a TEPO is subject to the
requirements and prohibitions established by sections 16 and 17 in the same way as the original
order
92 Subsection (9) defines ―prosecutor for the purposes of this section
Section 19 Orders on application variation renewal and discharge
93 Section 19 makes provision about the variation renewal or discharge of TEPOs made on
application
94 Subsections (2) to (4) set out general powers in this context The person in respect of
whom the TEPO is made or the chief constable may apply to the sheriff for variation renewal or
discharge of a TEPO made on application Subsection (4)(b) makes provision about shrieval
jurisdiction in this connection Where the sheriff receives such an application the sheriff may
vary renew or discharge individual prohibitions or requirements or add new prohibitions or
requirements renew the order so that the period of the order itself is extended or discharge the
whole order
95 Subsection (5) provides that the sheriff must before making an order under this section
give an opportunity to make representations to the person in respect of whom the order is made
15
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
and the chief constable Subsection (6) provides that after taking into account any such
representations the sheriff may then make such an order as the sheriff thinks appropriate
96 Subsection (7) sets out the tests the sheriff must consider when deciding whether to vary
renew or discharge TEPOs on application (including by adding new prohibitions or
requirements) or any prohibitions or requirements within them Those tests reflect the tests for
the making of a TEPO
97 Subsection (8) provides that when determining an application under this section the
sheriff may consider conduct which occurred before this section comes into force
98 Subsection (9) makes it clear that an order varying or renewing a TEPO is subject to the
requirements and prohibitions established by sections 16 and 17 in the same way as the original
order
Section 20 Interim prevention orders
99 Section 20 gives power to a sheriff to make an interim TEPO while the main application
under section 14 is being determined The sheriff may make such an order if the sheriff
considers it just to do so (subsection (1)) and such an order may contain prohibitions or
requirements (or both) in relation to the person in respect of whom the order is to have effect
(subsection (2)) Those prohibitions or requirements may relate to things to be done or not done
in any part of Scotland or anywhere outwith Scotland (subsection (3))
100 Subsection (4) provides that an interim TEPO will only have effect for a fixed period
specified in the order and will cease to have effect on the determination of an application for a
TEPO under section 14 if that fixed period has not expired
101 Subsection (5) allows for an application to a sheriff in the sheriffdom of the sheriff who
made the interim TEPO for variation or discharge of that order Such an application may be
made by the person in respect of whom the order was made or the chief constable
Section 21 Appeals prevention orders
102 Section 21 provides for an appeals process in relation to TEPOs and interim TEPOs
103 Subsection (1) makes provision about TEPOs made on sentencing and any variation or
renewal of such a TEPO These are to be treated as sentences for the purposes of any appeal
104 Subsections (2) (3) and (4) make provision about appeals in relation to TEPOs made on
application any variation or renewal of such a TEPO and interim TEPOs The person in respect
of whom the order was made or the chief constable may appeal against any of these orders
16
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
Trafficking and exploitation risk orders
Section 22 Risk orders
105 Section 22 provides that the chief constable may apply to a sheriff for a trafficking and
exploitation risk order (TERO) against an adult A TERO differs from a TEPO in that it may be
made where a person has not previously been convicted of a trafficking or exploitation offence
but the personrsquos behaviour indicates a risk that others may be at harm as a result of that person
committing such an offence and intervention at an early stage is necessary to prevent that harm
A TEPO can only be made where a relevant offence has already been committed
106 Subsection (2) sets out the appropriate sheriff to whom an application for such an order
may be made
107 Subsection (3) sets out the tests for making a TERO The sheriff may only make an order
if satisfied that the person in respect of whom the order is sought has acted in a way which
means that there is a risk the person may commit a relevant trafficking or exploitation offence
(subsection (3)(a)) and it is necessary to make the prohibitions or requirements in the order for
the purpose of protecting persons generally or particular persons from the physical or
psychological harm which would be likely to occur if the person committed such an offence
(subsection (3)(b))
108 Subsection (4) provides that in assessing those tests the sheriff may consider conduct
which occurred before this section comes into force
Section 23 Contents of risk orders
109 Section 23 makes provision about the prohibitions or requirements (or both) that may be
contained in a TERO Each prohibition and requirement in a TERO is for a fixed period and the
order itself is for a fixed period The orders and the prohibitions or requirements may all be for
the same period However the Bill allows some requirements and prohibitions in the order to be
set for a shorter period if that is appropriate
110 Subsection (2) provides that both the order and any prohibition or requirement in the
order must have a specified fixed period of at least two years However this does not apply to a
prohibition on foreign travel or to an order that contains a prohibition on foreign travel and no
other prohibitions or requirements Such a prohibition (or an order containing only such a
prohibition) must be for a fixed period of no more than five years under section 24(1))
111 Subsection (4) provides that a TERO may prohibit the person in respect of whom the
order is made from doing things or require that person to do things Different prohibitions and
requirements may have effect for different periods
112 Subsection (5) provides that if the sheriff makes a TERO in relation to a person already
subject to such an order the earlier order will cease to have effect
17
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
Section 24 Prohibitions on foreign travel
113 Section 24 makes provision about prohibitions on foreign travel contained in a TERO
114 As noted above subsection (1) provides that a prohibition on foreign travel contained in a
TERO and any TERO which contains such a prohibition and no other prohibitions or
requirements must be for a fixed period of not more than five years
115 Subsection (2) defines a ―prohibition on foreign travel as a prohibition on travelling to
countries outwith the UK (either by reference to particular countries or generally)
116 Subsection (3)(a) determines that a prohibition on foreign travel varied or renewed under
section 25 may be varied or renewed for further fixed periods of no more than five years each
time Subsection (3)(b) requires that an order containing only a foreign travel restriction may be
renewed for up to that fixed period
117 Subsection (4) sets out the requirement on a person in respect of whom a TERO has been
made containing a prohibition on foreign travel to all countries outwith the United Kingdom to
surrender at a police station each passport that the person has Subsection (5) provides that any
passport surrendered must be returned as soon as is reasonably practicable after the person
ceases to be subject to a prohibition on foreign travel to all countries outwith the United
Kingdom Circumstances where this subsection would not apply are provided for at subsection
(6) for example where a passport has already been returned to the relevant authority
Section 25 Variation renewal and discharge of risk orders
118 Section 25 makes provision about the variation renewal or discharge of TEROs
119 Subsections (1) to (3) set out general powers in this context The person in respect of
whom the TERO is made or the chief constable may apply to the sheriff for variation renewal or
discharge of a TERO Subsection (3) makes provision about shrieval jurisdiction in this
connection Where the sheriff receives such an application the sheriff may vary renew or
discharge individual prohibitions or requirements or add new prohibitions or requirements
renew the whole order or discharge the whole order
120 Subsection (4) provides that the sheriff must before making an order under this section
give an opportunity to make representations to the person in respect of whom the order is made
and the chief constable Subsection (5) provides that after taking into account any such
representations the sheriff may then make any order the sheriff considers appropriate
121 Subsection (6) sets out the tests the sheriff must consider when deciding whether to vary
renew or discharge TEROs (including by adding new prohibitions or requirements) or any
prohibitions or requirements within them Subsection (6)(a) applies the tests for the making of a
TERO to any variation (including an increase or a relaxation of a requirement or prohibition)
renewal or addition Subsection (6)(b) applies those tests to any discharge of a prohibition or
requirement or of an order
18
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
Section 26 Interim risk orders
122 Section 26 provides that a sheriff may make an interim TERO while the main application
under section 22 is being determined The sheriff may make such an order if the sheriff
considers it just to do so (subsection (1)) and such an order may contain prohibitions or
requirements (or both) in relation to the person in respect of whom the order is to have effect
(subsection (2)) Those prohibitions or requirements may relate to things to be done or not done
in any part of Scotland or anywhere outwith Scotland (subsection (3))
123 Subsection (4) provides that an interim TERO will only have effect for a fixed period
specified in the order and will cease to have effect on the determination of the main application
if that fixed period has not already expired
124 Subsection (5) allows for an application for variation or discharge of an interim TERO
(or a requirement or prohibition in the order) to be made to a sheriff in the sheriffdom of the
sheriff who made the interim order by the person in respect of whom the order was made or the
chief constable (subsection (6))
Section 27 Appeals risk orders
125 Section 27 provides for an appeals process in relation to TEROs and interim TEROs and
any order varying or renewing such a TERO or interim TERO The person in respect of whom
the order was made or the chief constable may appeal against any of these orders
Offences and supplementary provision
Section 28 Offences
126 Section 28 makes provision about breach of TEPOs and TEROs
127 Subsections (1) and (2) provide that a person commits an offence if that person does
anything which the person is prohibited from doing by an order or fails to do anything which the
person is required to do by a TEPO or a TERO or an interim TEPO or TERO
128 Subsection (3) makes provision about penalties in relation to these offences A person
who commits an offence under this section is liable on summary conviction to imprisonment for
a term not exceeding 12 months or a fine not exceeding the statutory minimum (or both) On
conviction on indictment that person is liable to imprisonment for a term not exceeding five
years or a fine (or both)
Section 29 Enforcement of other UK orders
129 Section 29 provides that the Scottish Ministers may modify by regulations the list of
orders at section 28(2) so that a breach of those orders in Scotland constitutes an offence under
section 28(1) The orders which may be added are ―relevant UK orders Those are described in
subsection (2) as orders under the law of England and Wales or Northern Ireland which appear to
the Scottish Ministers to be equivalent or similar to TEPOs TEROs or interim TEPOs or
TEROs
19
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
Section 30 Interpretation of Part 4
130 Section 30 defines certain terms used in Part 4
PART 5 - STRATEGY AND REPORTING
Section 31 Trafficking and exploitation strategy
131 Section 31 places a duty on the Scottish Ministers to prepare a trafficking and
exploitation strategy The strategy under this section is a strategy which sets out such actions
arrangements and outcomes as the Scottish Ministers consider appropriate in relation to the
conduct which constitutes an offence under this Act
132 Subsection (3) lists some of the matters which may be set out in the strategy though that
list is not exhaustive Those matters include for example training and awareness raising in
relation to the detection and prevention of the conduct which constitutes an offence of human
trafficking or an offence under section 4
Section 32 Review and publication of strategy
133 Subsection (1) of section 32 provides that the strategy prepared under section 31 must be
reviewed by the Scottish Ministers every three years Following a review the Scottish Ministers
are required by subsection (2) to prepare a report on the review including an assessment of the
extent to which the strategy has been complied with and may prepare a revised strategy If a
decision is taken following such a review not to prepare a revised strategy the Scottish Ministers
must set out their reasons for that decision
134 Subsection (4) places a duty on the Scottish Ministers to consult with those likely to have
an interest in the strategy before preparing or reviewing the strategy Those likely to have an
interest include but are not limited to businesses support agencies faith based groups etc
135 Subsection (5) requires the Scottish Ministers to publish and lay before the Scottish
Parliament each strategy and report prepared under this section
Section 33 Duty to co-operate on strategy
136 Section 33 provides that Scottish public authorities as specified in regulations that may
be made by the Scottish Ministers must provide such information and assistance as the Scottish
Ministers may reasonably require and otherwise co-operate with the Scottish Ministers in the
preparation or review of the strategy A specified public authority could include for example
Police Scotland and local authorities
Section 34 Duty to notify and provide information about victims
137 Section 34 places a duty on specified Scottish public authorities to notify the chief
constable of the Police Service of Scotland about a person who is or appears to be a victim of
20
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
an offence under section 1 or section 4 This duty would not affect any other general right to
report information relating to crime
138 Subsection (2) requires that a notification relating to an adult is anonymised and does not
include any information that identifies the adult or enables the adult to be identified unless the
adult consents to that data being provided
139 Subsection (3) provides that the Scottish Ministers may by regulations specify the
Scottish public authorities who are to be subject to this duty and may make provision about the
information to be included in the notification The regulations will be subject to the negative
procedure
PART 6 ndash FINAL PROVISIONS
Section 35 Offences by bodies corporate etc
140 Section 35 provides that where an offence under the Bill was committed by a body
corporate or a Scottish partnership or other unincorporated association and it is proved that the
offence was committed with the consent or connivance of or was attributable to any neglect on
the part of a relevant individual or someone purporting to be acting in the capacity of a relevant
individual that individual as well as the body corporate partnership or unincorporated
association commits the offence and is liable to be proceeded against and punished accordingly
141 Subsection (2) defines what is meant by a ―relevant individual for the purpose of this
section
Section 36 Interpretation
142 Section 36 defines certain terms for the purposes of the Bill for example the definition
of ―travel
Section 37 Regulations
143 The Scottish Ministers are given various powers under this Bill to make regulations
Section 37 provides for the parliamentary procedure which is to be applicable in relation to each
of those powers
Section 38 Ancillary provision
144 Section 38 provides that the Scottish Ministers may make regulations containing such
incidental supplementary consequential transitional transitory or saving provision as they
consider necessary or expedient for the purposes of or in connection with the provisions of the
Bill
21
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
Section 39 Minor and consequential amendments
145 Section 39 introduces the schedule which makes minor amendments and amendments
consequential on the provisions of the Bill Given their replacement in Part 1 of the Bill the
schedule repeals the current offences in relation to human trafficking (section 22 of the 2003 Act
and section 4 of the 2004 Act) and slavery servitude and forced or compulsory labour (section
47 of the 2010 Act)
Section 40 Crown application
146 Section 40(1) provides that none of the provisions made by or under the Act are capable
of making the Crown criminally liable In accordance with subsection (2) enforcement of
offences against the Crown is to be done by the Scottish Ministers or any other public body or
office-holder with responsibility for enforcing the provision applying to the Court of Session for
a civil declarator of non-compliance This provision does not apply to persons in the public
service of the Crown
Section 41 Commencement
147 Section 41 provides that sections 36 37 38 40 41 and 42 of the Bill come into force on
the day after Royal Assent All other provisions are to come into force on a day appointed by
regulations made by the Scottish Ministers
22
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
FINANCIAL MEMORANDUM
INTRODUCTION
1 This document relates to the Human Trafficking and Exploitation (Scotland) Bill (―the
Bill) introduced in the Scottish Parliament on 11 December 2014 It has been prepared by the
Scottish Government to satisfy Rule 932 of the Parliamentrsquos Standing Orders It does not form
part of the Bill and has not been endorsed by the Parliament
2 The purpose of the Bill is to consolidate and strengthen the existing criminal law against
human trafficking and exploitation and enhance the status and support provided to victims Bill
provisions are in the following Partsmdash
Part 1 (Offences) includes provision on the creation of a single offence of human trafficking
for all types of exploitation of both adults and children establishes statutory aggravators of
human trafficking for use with other crimes and reframes the current standalone offence of
slavery servitude and forced or compulsory labour
Part 2 (Protection of victims) includes provision on prosecutorial guidelines for the
prosecution of victims and provision about the support and assistance to which adult victims
are entitled
Part 3 (Confiscation of property) includes provision on detention and forfeiture of property
and proceeds of crime
Part 4 (Trafficking and exploitation prevention and risk orders) includes provision on
two new preventive orders the trafficking and exploitation prevention order and the
trafficking and exploitation risk order
Part 5 (Strategy and reporting) includes provision on the trafficking and exploitation
strategy and the duty on specified Scottish public authorities to notify and provide
information about victims
Part 6 contains general and ancillary provisions
3 This Financial Memorandum considers the financial implications of each of the elements
of the Bill where relevant
BACKGROUND
4 Before considering the financial implications associated with the specific provisions
within the Bill it is important to consider both the current estimated extent of human trafficking
in Scotland and existing activity by public bodies and others in response to this issue
23
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
Extent of human trafficking in Scotland
5 Human trafficking is by its nature a hidden crime The National Referral Mechanism
(NRM) is the process set up by the UK Government to identify and support victims of trafficking
in the UK The NRM is also the mechanism by which the UK Human Trafficking Centre
collects data about potential victims of trafficking Information about suspected child and adult
victims of human trafficking is referred by relevant ―first responder organisations such as the
police and third sector bodies for example Migrant Help and the Trafficking Awareness Raising
Alliance (TARA) Referrals relate to victims trafficked from outside and within the UK The
table below summarises the most recent available information on NRM referrals from first
responder organisations in Scotland
Table 1 Recent referrals from first responders in Scotland of potential child and adult
human trafficking victims to the National Referral Mechanism
2012 2013
Adults 67 77
Children 29 22
Total 96 99
of all UK Referrals 8 6
Source National Crime Agency National Referral Mechanism Statistics 2012 and 20131
6 Various reports confirm that the number of victims referred through the NRM is likely to
be a significant underestimate of the actual number of potential victims of trafficking For
example the Equality and Human Rights Commission Inquiry into Human Trafficking in
Scotland (2011) noted ―estimates of identified potential victims do not reflect what is likely to be
a much greater number of unidentified victims2
7 The UK National Crime Agency (NCA) Strategic Assessment of the Nature and Scale of
Human Trafficking in the UK3 aims to provide an indication of the nature and scale of human
trafficking beyond the number of referrals to the NRM The assessment is produced using
intelligence held by the NCA the NRM and intelligence information collected from agencies
such as Police Scotland the Home Office Gangmastersrsquo Licensing Authority and non-
government organisations The assessment removes information of potential victims referred to
the NRM who have received a negative ―reasonable grounds or ―conclusive decision (ie it
has been confirmed that they are not victims of trafficking) or duplicate information about
individuals (ie the same person has been referred more than once or by more than one agency)
to show a total number of ―unique potential victims of trafficking The NCA Assessment for
2013 indicated that there were significantly more unique potential victims of human trafficking
identified across the UK than the numbers referred to the NRM even excluding those that
received a negative decision and that the number of unique victims was increasing
1 httpwwwnationalcrimeagencygovukpublications399-nca-strategic-assessment-the-nature-and-scale-of-
human-trafficking-in-2013file 2httpwwwequalityhumanrightscomsitesdefaultfilesdocumentsScotlandHuman_Trafficking_in_Scotland_inq
uiry_into_human_trafficking_in_scotland-full-report_pdf_pdf 3 httpwwwnationalcrimeagencygovukpublications399-nca-strategic-assessment-the-nature-and-scale-of-
human-trafficking-in-2013file
24
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
Table 2 Comparison of recent UK referrals to the National Referral Mechanism and the
National Crime Agency Strategic Assessment of the Scale of Human Trafficking
2012 2013 Change
Referred to NRM 778 1095 +41
NCA Assessment No of
Unique Potential Victims
Identified
2255 2744 +22
Source National Crime Agency Strategic Assessment of the Nature and Scale of Human
Trafficking in the UK4
8 For Scotland the NCA Assessment for 2013 identified 55 unique potential victims of
human trafficking compared with 99 referrals to the NRM It is not known why in contrast to
the position in England and Wales the NCA Assessment for Scotland is lower than the NRM
referrals although it will exclude potential victims who received a negative conclusive decision
and duplicate referrals However these numbers must be treated with significant caution There
remains strong conviction amongst law enforcement bodies and victims organisations that there
are more victims of trafficking than are identified and that even once identified victims are
often unwilling to engage with authorities or identify themselves as having been trafficked For
the purpose of this Financial Memorandum the Scottish Government has accepted the NCA
assessment that there are likely to be between two and three times as many potential victims of
trafficking as are currently identified through the NRM This assessment is based on the Scottish
Governmentrsquos best understanding of the hidden nature of this crime and the known reluctance of
some victims to identify their trafficked status or to engage with public authorities
Criminal justice response to human trafficking and exploitation
9 There have been relatively few prosecutions and convictions for human trafficking
offences under existing criminal justice legislationmdash
The Criminal Justice (Scotland) Act 20035 (―the 2003 Act) provides for offences of
trafficking for the purposes of exploitation by way of prostitution
The Asylum and Immigration (Treatment of Claimants etc) Act 20046 (―the 2004
Act) provides for offences of trafficking for labour and other forms of exploitation
The Criminal Justice and Licensing (Scotland) Act 20107 (―the 2010 Act) amended
and extended the 2003 and 2004 Acts and created a standalone offence of holding
someone in slavery or servitude or requiring a person to perform forced or
compulsory labour
10 The first successful convictions for human trafficking in Scotland were in 2011 under
section 22 of the 2003 Act for trafficking for the purposes of prostitution During 2013 a total of
four people were convicted of human trafficking offences - one person under section 22 of the
2003 Act and three people under section 4 of the 2004 Act for trafficking for forced marriage
4 httpwwwnationalcrimeagencygovukpublications399-nca-strategic-assessment-the-nature-and-scale-of-
human-trafficking-in-2013file 5 httpwwwlegislationgovukasp20037
6 httpwwwlegislationgovukukpga200419
7 httpwwwlegislationgovukasp201013
25
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
The average custodial sentence length for those convicted of trafficking offences was 847 days
(just under two years and four months) as well as any confiscation order imposed
11 Although the number of convictions for trafficking offences has been small police and
the Crown Office and Procurator Fiscal Service (COPFS) have confirmed that even though it is
not possible to always prove the trafficking offence where a credible suspicion exists people
suspected of involvement with trafficking can and often are prosecuted and convicted for other
crimes such as crimes associated with prostitution forced marriage immigration offences and
drugs offences etc
12 Police Scotland has established a dedicated National Human Trafficking Unit to enhance
the police response to human trafficking through awareness raising intelligence gathering
training and providing divisions with advice and specialist knowledge The COPFS has
appointed dedicated expert fiscals to prosecute human trafficking offences
Support for victims of trafficking
13 The Scottish Government currently allocates direct grant funding to non-government
organisations to provide and facilitate immediate support and assistance to the adult victims of
human trafficking This support can include immediate safe accommodation psychological
support assistance in accessing medical treatment material assistance interpretation and
translation and assistance either with repatriation or securing longer-term access to mainstream
services and support such as welfare benefits and housing The provision of support and
assistance is not conditional on the potential victim being willing to participate in the criminal
justice process Under the NRM victims of trafficking are guaranteed ―a recovery and reflection
period to recover from their experience escape the influence of those alleged to have trafficked
or exploited them and consider whether to engage with authorities The Council of Europe
Convention on Action Against Trafficking in Human Beings8 provides for a reflection period of
at least 30 days for all trafficked victims when there are reasonable grounds to believe that the
person concerned is a victim The current minimum recovery and reflection period in Scotland
and the rest of the UK is 45 days
14 In 2013-14 total grant funding of pound723000 was provided by the Scottish Government
towards the costs of ensuring immediate support and assistance for the adult victims and
potential victims of trafficking in Scotland This funding was provided through two non-
government organisationsmdash
the TARA Service which works with women aged 18 years and over across
Scotland where there are concerns that they have been trafficked for commercial
sexual exploitation and
Migrant Help a UK-wide organisation providing support and advice services to
migrants including new asylum claimants refugees EU nationals etc
15 Support for the child victims of trafficking is co-ordinated by local authorities as part of
their child protection arrangements and in line with the policy intention that children remain
8 httpwwwcoeinttdghlmonitoringtraffickingdocsconvntnCETS197_enasp
26
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
children first and that their needs should be treated accordingly The Scottish Government has
produced a toolkit for agencies working with children and young people to ensure that staff are
able to identify trafficked children and make appropriate referrals so that victims can receive
protection and support The toolkit is designed to be used in conjunction with National Child
Protection Guidance9 which was first published in 2010 and refreshed in 2014 and other
relevant national and international guidance Information about current expenditure on child
victims of trafficking is not recorded separately from information about wider expenditure on
child protection services
Lord Advocate guidance on prosecution policy
16 In his letter of 21 January 2013 to the Scottish Parliament European and External
Relations Committee10
the Lord Advocate set out the current arrangements for fiscals
considering the prosecution of a confirmed or potential victim of human trafficking where it is
believed or claimed that the crime was committed as a direct consequence of the personrsquos
trafficked status The letter set out the basis for the current Lord Advocatersquos guidance to
prosecutors including the presumption against the prosecution of a credible trafficking victim
for crimes that arise as a consequence of the victimrsquos trafficked status
Human trafficking strategic approach awareness raising and training
17 The first Scottish Human Trafficking Summit was hosted by the Cabinet Secretary for
Justice in October 2012 The summit brought together key law enforcement public private and
third sector organisations with an interest in human trafficking Following the summit a number
of strategic collaborative actions were agreed and progressed including with reference to
awareness raising and training for frontline staff data collection and analysis identification care
and support for both child and adult victims of trafficking and enhancing enforcement
18 One specific workstream related to awareness raising and training of front-line staff
likely to come into contact with trafficking victims or potential instances of trafficking
Following the summit Police Scotland with support from the Scottish Government and others
prepared published and circulated widely an awareness raising leaflet ndash Reading the Signs11
ndash to
assist police officers and staff in other front line posts in identifying the signs of potential
trafficking The Scottish Government also participated with the UK Government in a UK-wide
public awareness raising campaign about modern slavery and trafficking
19 In addition to general awareness raising specific training material was prepared for key
front-line staff For example all police officers were required to undertake an e-learning course
on human trafficking A special leaflet for health workers was prepared and circulated by NHS
Health Scotland An e-learning module for health workers about their role in identifying and
9 httpwwwscotlandgovukPublications2014053052
10httpwwwscottishparliamentukS3_EuropeanandExternalRelationsCommitteeGeneral20DocumentsLetterfro
mTheLordAdvocatepdf 11
httpwwwscotlandpoliceukassetspdf174967human-traffickingview=Standard
27
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
responding to victims of trafficking was made available through the National Gender Based
Violence and Health Programme12
IMPACT OF SPECIFIC PROVISIONS
PART 1 - OFFENCES
Single trafficking offence
20 The Bill establishes a new single offence of human trafficking for all types of
exploitation for both adults and children replacing existing separate criminal offences (see
paragraph 9 above) As noted above to date there have been relatively small numbers of
prosecutions under existing trafficking offences
21 The maximum penalty for conviction on indictment for the single trafficking offence will
be life imprisonment compared with a maximum of 14 years for the current separate offences
Although it will be for the court to decide how to sentence people convicted under the new single
offence in any given case it is likely that the availability of a higher maximum sentence will
have cost implications for the Scottish Prison Service (SPS)
Revised slavery servitude and forced labour offence
22 The Bill will also repeal and replace the existing exploitation offence within section 47 of
the 2010 Act which criminalises holding someone in slavery or servitude or requiring them to
perform compulsory or forced labour The offence will be revised and strengthened to allow the
court to consider in assessing whether a person has been a victim of an offence the victimrsquos
characteristics such as age physical or mental illness disability or where relevant family
relationships The maximum penalty for the offence will be increased from 14 years for the
current offence to life imprisonment for a conviction on indictment
Statutory aggravators
23 The Bill makes provision for statutory aggravators which apply in cases where an
accused person commits an offence connected with human trafficking and for when the offence
is committed in connection with the accusedrsquos position as a public official The court must take
the aggravation into account in determining the appropriate sentence if it is proved that the
offence is aggravated in this way The statutory aggravator is not anticipated to have any
substantial financial implications for public private or third sector bodies or for individuals
Costs on the Scottish Administration
24 Consolidating and clarifying the existing criminal law on trafficking and exploitation
alongside other measures arising from the Bill and the trafficking and exploitation strategy
including training and awareness raising and support for victims should increase the potential
for successful investigations prosecutions and convictions of human trafficking and exploitation
offences There have been six successful prosecutions for a specific trafficking offence to date in
Scotland with an average custodial sentence length of two years and four months against a
12
httpwwwgbvscotnhsuk
28
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
maximum possible sentence of 14 years The maximum number of prosecutions in any one year
was four individuals in two separate cases
25 Police and prosecutors already have in place specialist resources for investigating and
prosecuting human trafficking and exploitation offences and these provisions will not add to
these costs Law enforcement agencies have confirmed that whilst the number of prosecutions
for specific trafficking offences has been low where victims are identified but are unwilling to
testify individuals suspected of trafficking and exploitation will be prosecuted in court for other
related offences The Lord Advocate has identified that ―If we donrsquot have the evidence [to
prosecute for a specific human trafficking offence] we prosecute for fraud ID theft or asylum
and immigration offences13
26 The Scottish Government does not anticipate therefore significant additional cost
implications for law enforcement agencies or courts as cases will often proceed with a
trafficking offence alongside or in place of other related offences For the same reason the
Scottish Government does not anticipate significant additional cost on the Scottish Legal Aid
Board (SLAB) However if it is assumed that the number of successful trials proceeding in any
single year doubles from two to four there would be some additional costs on the COPFS the
Scottish Court Service (SCS) and SLAB based on the average unit costs for cases proceeded
either through Sheriff Court Solemn procedure or through the High Court These estimated costs
depending on whether cases are proceeded through the High Court or Sheriff Court solemn
procedure are illustrated in the table below
Table 3 Estimated unit costs of additional trial procedures through either High Court or
Sheriff Court solemn procedure (pound000)
Average prosecution
costs per procedure
(COPFS)
Average court costs
per procedure (SCS)
Average legal aid
costs per procedure
(SLAB)
Sheriff Court solemn
procedure (pound000) pound49 pound19 pound16
High Court (pound000) pound556 pound90 pound135
Estimated average
costs of 2 additional
trial procedures 4
accused per annum
(pound000)
pound99-pound1112 pound38-pound180 pound64-pound540
Source costs of the Criminal Justice System in Scotland Dataset (2013)14
27 There will also be costs to the SPS both through any increase in the number of successful
convictions for trafficking and exploitation offences and an anticipated increase in the average
length of custodial sentence for these crimes It is not possible to know for certain the total
13
httpwwwdailyrecordcouknewsscottish-newsonly-three-successful-prosecutions-brought-4457684 14httpwwwscotlandgovukTopicsStatisticsBrowseCrimeJusticePublicationscostcrimjustsc
otcostcrimjustdatasethttpwwwscotlandgovukTopicsStatisticsBrowseCrimeJusticePublicationscostcrimj
ustscotcostcrimjustdataset
29
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
number of future convictions or what sentencing decisions might be taken by courts in individual
cases
28 The table below illustrates the potential cost implications of either maintaining or
increasing the current maximum number of convictions in any individual year from four to eight
convictions For the purpose of the calculation it is assumed that the average custodial sentence
length for trafficking and exploitation offences will increase from two years and four months
(classified as a short-term sentence) to over four years (classified as a long-term sentence) as
increasing the maximum sentence to life imprisonment is anticipated to increase the average
sentence for a trafficking offence The estimated average annual cost of a prison place based on
SPS figures is pound42500 Taking account of the current early release arrangements for long-term
prisoners and the overlapping of individual sentences would result in an estimated increase of 8
to 21 total prison places each year after four years ndash ie with an additional four people receiving
custodial sentences each year and released by the Parole Board at the halfway point of their
sentence or automatically at the two-thirds point The total costs to the SPS will be within a
range of pound340000 to pound890000 These costs will fit within the overall budget costs to the SPS
As at 17 October 2014 there were 7731 people in custody in Scotland An additional 21 places
accounts for 03 of the total prison population
Table 4 Estimated range of costs to the Scottish Prison Service from increasing the
number and average length of successful prosecutions for trafficking offences
Year 1 Year 2 Year 3 Year 4
Additional Prison places 0-4 4-12 8-17 8-21
Additional Cost (pound000) pound0-pound170 pound170- pound510 pound340-pound720 pound340-pound890
Table 5 Estimated range of combined costs for trial procedures and prison places
Year 1 Year 2 Year 3 Year 4
Additional Cost (pound000) pound20-pound353 pound190- pound693 pound360-pound900 pound360-pound1073
Costs on other bodies individuals and businesses
29 There will be no new costs falling on other bodies individuals and businesses as a
consequence of these sections but see the section below with reference to victim support
Costs on local authorities
30 There will be no new costs falling on local authorities as a consequence of these specific
sections
PART 2 - PROTECTION OF VICTIMS
Duty on the Lord Advocate to publish guidance about the prosecution of credible trafficking and
exploitation victims who have committed offences
Costs on the Scottish Administration
31 As noted above the Lord Advocate already prepares and publishes guidance to fiscals
about the prosecution of credible victims of human trafficking for crimes committed as a direct
30
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
consequence of their trafficking status The requirement to publish such guidance would in
future be statutory However there will be no new costs on the Scottish Government or the
COPFS as a consequence of placing the requirement for the Lord Advocate to issue this
guidance on a statutory basis
Costs on other bodies individuals and businesses
32 There will be no new costs falling on other bodies individuals and businesses as a
consequence of these sections
Costs on local authorities
33 There will be no new costs falling on local authorities as a consequence of these sections
Ensure the rights of victims to access and support
34 The Bill will place a statutory duty on the Scottish Ministers to secure the provision of
relevant immediate support and recovery services for adult victims of trafficking subject to an
assessment of need The Bill will specify those victims or potential victims entitled to support
and the minimum time periods during which such services should be provided Specifically the
Bill will require Ministers to provide support and assistance based on each individualrsquos assessed
needs during the recovery and reflection period (currently 45 days) during which the
individualrsquos trafficking status is determined The Bill specifies minimum support and assistance
that should be considered as part of the assessment including access to housing treatment
interpretation services etc The Scottish Ministers have the flexibility to provide support and
assistance outwith the specified reflection and recovery period where this is considered
appropriate
35 As noted above the Scottish Ministers already provide grant funding totalling pound723000
to third sector organisations to assist identified adult potential victims of trafficking Provision of
support to adult victims will be placed on a statutory basis The number of adult potential victims
of trafficking referred through the NRM during 2013 was 77 although not all of these will have
requested assistance or received the full range of support services It is assumed that other
actions arising from the Bill including the single offence and publication of the trafficking and
exploitation strategy will result over time in an increase in identified victims and requests for
assistance and support
Costs on the Scottish Administration
36 The Scottish Government anticipates that improved awareness raising and training of
front-line staff will result in an increase in the number of victims identified over time It is not
possible to know how quickly this improvement will be achieved However between 2012 and
2013 the number of potential identified victims across the UK identified through the NCA
strategic assessment and NRM increased by 22 and 41 respectively Given the need for
awareness raising and training to impact the Scottish Government does not anticipate a similar
scale of increase in the immediate term but the Government considers it reasonable to anticipate
a possible increase of between 10 and 20 per annum in the overall number of requests for
assistance and support each year over the next four years Assuming a similar mix of needs as
31
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
current victims the increased costs to the Scottish Government on top of existing funding
would range between pound290000 to pound580000 per annum by year four
Table 6 Estimated range of costs increases for victim support and assistance (pound000)
Year 1 Year 2 Year 3 Year 4
Additional Cost (pound000) pound0-pound140 pound140-pound280 pound220-pound430 pound290-pound580
Costs on other bodies individuals and businesses
37 There will be no additional costs on other public bodies individuals or businesses
associated with these specific provisions There will be no direct additional costs falling on third
sector organisations as a consequence of the specific provisions It is likely however that all or
part of the additional funding identified above will be directed by the Scottish Government
through relevant third sector organisations with the expertise to provide immediate support and
protection to victims
Costs on local authorities
38 The Bill creates no new legislative requirements for the delivery of childrenrsquos services
recognising that this already exists It is therefore not anticipated that the Bill will result in any
quantifiable additional costs on local authorities or other public bodies as a result of support for
child victims Child victims of trafficking are supported as part of the Getting It Right for Every
Child (GIRFEC) approach any child whether identified as trafficked or not will be assessed on
the basis of its needs It is anticipated that as a consequence of the strategy (for which the Bill
provides) that more children may be identified as trafficked It is noted however that various
reports including most recently the UK Governmentrsquos NRM Review Report15
have found that
children who are already receiving support from relevant authorities in the UK are often not
identified as trafficked victims because of lack of awareness of the referral process It may be
that actions arising from the development of the strategy and dialogue with stakeholders will
give rise to additional activity or costs with reference to child victims of trafficking but these are
not known and cannot be estimated at this time
PART 3 - CONFISCATION OF PROPERTY
39 The Bill will provide police with powers to detain the property such as cars boats etc of
a person arrested for a trafficking offence This power will be exercised at the time of arrest and
is not expected to impose any additional costs on the police or others
Costs on the Scottish Administration
40 There will be no additional costs on the Scottish Government as a result of these
provisions Individuals can apply to the court to have vehicles ships or aircraft released from
detention This will be considered as part of the overall case and will not add to the costs to the
criminal justice system
15
httpsnrmhomeofficegovuk
32
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
Costs on other bodies individuals and businesses
41 There will be no additional costs on other public bodies individuals or businesses
including Police Scotland as a result of these specific provisions
Costs on local authorities
42 There will be no additional costs on local authorities as a result of these specific
provisions
PART 4 - TRAFFICKING AND EXPLOITATION PREVENTION AND RISK ORDERS
Introduce new measures to disrupt and prevent trafficking and exploitation
43 The Bill will introduce two new civil orders and associated interim orders to assist in
preventing trafficking and exploitation Trafficking and Exploitation Prevention Orders (TEPOs)
and Trafficking and Exploitation Risk Orders (TEROs) Where an individual has been convicted
of a trafficking or exploitation offence or an offence with a statutory trafficking aggravator a
TEPO may be imposed by a court where there is a risk that that individual may commit a further
human trafficking offence and it is necessary to make the order to protect people from the
physical or psychological harm which might occur if such an offence were committed The
TEPO will prevent the individual from engaging in activities described in the order Where a
person has not been convicted of a trafficking or exploitation offence but a court considers that
the person presents a significant risk of harm to others through the individual committing a
trafficking or exploitation offence the court can impose a TERO restricting specific activities or
imposing requirements These orders will be civil but breach of an order will constitute a
criminal offence with a maximum penalty of five years in prison available to the court
44 The Bill will categorise the trafficking and exploitation offences as lifestyle offences in
order to automatically trigger provisions within the Proceeds of Crime Act 2002 (―the 2002
Act) The definition of an offence as a ―lifestyle offence allows for proceedings under the
2002 Act to confiscate assets or monies from the individual convicted of the offence
Costs on the Scottish Administration
45 The purpose of TEPOs and TEROs is to prevent criminal activity associated with
trafficking and exploitation from arising There will be some cost implications for law
enforcement organisations which will need to monitor the terms of any order imposed by the
courts However these will be offset by the savings made from being able to intervene at an
early stage of criminality if an order has been breached For the equivalent civil orders within the
UK Modern Slavery Bill the UK Government has estimated potential net savings of between
pound130000 and pound1090000 per annum The Scottish Government has not incorporated any
savings for the purpose of Scottish legislation but expects the costs of implementing TEPOs and
TEROs and detention powers to be at least cost neutral for the Scottish Administration and other
public bodies
33
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
46 The Bill will give courts powers to impose a TEPO at the time of sentencing There will
be no immediate additional costs for the courts or COPFS associated with TEPOs imposed as
part of sentencing The Chief Constable of Police Scotland will also be able to apply to the court
for a TEPO to be imposed on a relevant offender previously convicted of a trafficking offence
There will be costs to Police Scotland in making the application and to the SCS and to SLAB in
considering the application As there have been only six previous convictions for trafficking
offences in Scotland the Scottish Government expects the number of applications for TEPOs for
previous convictions to be small one-off and will not add to the overall costs of the criminal
justice system The Chief Constable of Police Scotland can also apply to the court for a TERO
against an individual where it is considered that that individual is likely to commit a trafficking
offence
47 Looking at the equivalent costs for similar civil orders eg Sexual Offences Prevention
Orders the total costs to the SCS the COPFS and SLAB of applying for a TERO or post-
sentencing TEPO are estimated at between pound1000 and pound6000 per order It is not possible to
know how many TEPOs or TEROs might be applied for but assuming a number half the level of
the estimated maximum number of potential convictions for trafficking offences each year (four
to eight) would give estimated costs of between pound2000 (2 x pound1000) and pound24000 (4 x pound6000)
per annum
48 There will be costs to Police Scotland in monitoring TEPOs and TEROs whether
imposed at the time of sentence or by application but this will sit alongside Police Scotlandrsquos
existing crime prevention and investigative responsibilities and is not expected to add to
manpower costs
49 In addition to the costs of imposing and monitoring TEPOs and TEROs there will be
costs associated with prosecuting a breach of a TEPO or TERO Analysis in England and Wales
indicates that breaches of equivalent Serious Crime Prevention Orders are relatively low
Assuming one breach per annum the total combined costs to the COPFS the SCS and SLAB
would be between pound8400 and pound78100 per annum (see the combined costs for either sheriff
court or High Court procedures set out in Table 3 above) Assuming a maximum sentence of
five years the costs to the SPS for additional prison places would be between pound85000 and
pound127500 per annum (ie the pound42500 average costs of a prison place times either two or three
places depending on whether offenders are released early at the halfway or two-thirds point of
their sentence)
50 It is important to remember however that the purpose of TEPOs and TEROs is to
prevent further trafficking and exploitation offences occurring A TEPO or TERO will only be
imposed where a court considers that there is a credible risk of an individual committing such a
crime Any costs associated with the imposition and breach of TEPOs and TEROs needs to be
offset against the potential costs of prosecutions If each TEPO or TERO prevents the costs of a
conviction for an offence as set out in Part 1 above the costs to the Scottish Administration
would be at least cost neutral in terms of saved court and prison places expenditure
34
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
Costs on other bodies individuals and businesses
51 There will be no costs on other bodies businesses or other individuals as a consequence
of these sections
Costs on local authorities
52 There will be no new costs on local authorities as a consequence of these sections
PART 5 - STRATEGY AND REPORTING
Ensure a strategic cross-agency approach to tackling trafficking
53 The Bill places a duty on the Scottish Ministers to prepare publish and regularly review
and update a trafficking and exploitation strategy to assist in ensuring a co-ordinated and
strategic approach to this issue The provisions place a duty on Ministers to consult with such
organisations and individuals as they consider to have a relevant interest in the issues of human
trafficking and exploitation The Bill places a duty on relevant public bodies to be named in
regulations to assist in the preparation and review of the strategy
54 The Bill will place a duty on relevant public authorities to provide anonymised data about
potential human trafficking and exploitation victims to Police Scotland
Costs on the Scottish Administration
55 Activity arising from these provisions within the Bill will build on the activity and
current resources already committed to this area of work
56 Based on similar activities the estimated additional costs to the Scottish Ministers of
preparing and reviewing a trafficking and exploitation strategy will be approximately pound25000
every three years Alongside the preparation and publication of the strategy the Scottish
Ministers would also propose to support additional awareness raising and training activity to
build on the existing awareness raising and training activity already undertaken by relevant
organisations including the NHS Police Scotland and COPFS Consideration would be given to
how best to co-ordinate these resources alongside existing expenditure and activity For the
purposes of the Financial Memorandum and based on current activity additional costs on top of
existing activity are estimated at approximately pound100000 to pound250000 per annum over the first
four years of the Bill This is based on the best estimated costs of preparing and publishing
publicity and guidance material averaged over a number of years The exact costs will depend
on decisions taken in dialogue with stakeholders as part of the preparation of the strategy
57 The Scottish Government anticipates that the costs to relevant public authorities of
providing anonymised data about potential human trafficking victims to Police Scotland will be
marginal Costs to Police Scotland of collating this data will form part of their existing
intelligence gathering activity
35
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
Costs on other bodies individuals and businesses
58 There will be some costs on other bodies individuals and businesses in engaging with the
Scottish Ministers in the preparation and publication of the Strategy For business and
individuals this will be voluntary depending on their willingness to engage For public bodies
their level of engagement will depend on the relevance of the issue of trafficking and
exploitation to their work and their potential contribution to combating this behaviour Any
additional costs are expected to fit within or sit alongside their existing responsibilities for
example with reference to promoting and ensuring equalities and the application of human
rights obligations
Costs on local authorities
59 There will be costs on local authorities associated with engaging in the preparation and
review of the trafficking and exploitation strategy and in awareness raising and training of front-
line staff The additional costs should be marginal on top of the existing guidance and activity
already in place with reference to the identification and support of potential child victims of
trafficking The aim will be to minimise costs for other front-line local authority staff by
adapting the general awareness raising and training materials described above
SUMMARY
60 The table below provides a summary of the costs of each element of the Bill as described
above
Table 7 Summary table of costs for each aspect of the Bill (pound000)
Year 1 Year 2 Year 3 Year 4
Clarifying amp
Strengthening the
Criminal Law ndash Para 28 pound20-pound353 pound190- pound693 pound360-pound900 pound360-pound1073
Ensure the rights of
victims to access and
support - Para 36 pound70-pound140 pound140-pound280 pound220-pound430 pound290-pound580
Introduce new measures to
disrupt and prevent
trafficking pound016
pound0 pound0 pound0
Ensure a strategic cross
agency approach to
tackling trafficking ndash Para
56 pound125-pound275 pound100-pound250 pound100-pound250 pound125-pound275
TOTAL pound215-pound768 pound430-pound1223 pound680-pound1580 pound775-pound1928
16
The Scottish Government considers that the overall costs are at least cost neutral ndash see paragraphs 45 to 50
36
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December
SCOTTISH GOVERNMENT STATEMENT ON LEGISLATIVE
COMPETENCE
On 11 December 2014 the Cabinet Secretary for Justice (Michael Matheson MSP) made the
following statement
―In my view the provisions of the Human Trafficking and Exploitation (Scotland) Bill
would be within the legislative competence of the Scottish Parliament
mdashmdashmdashmdashmdashmdashmdashmdashmdashmdash
PRESIDING OFFICERrsquoS STATEMENT ON LEGISLATIVE
COMPETENCE
On 11 December 2014 the Presiding Officer (Rt Hon Tricia Marwick MSP) made the following
statement
―In my view the provisions of the Human Trafficking and Exploitation (Scotland) Bill
would be within the legislative competence of the Scottish Parliament
37
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December
SP Bill 57ndashEN Session 4 (2014)
HUMAN TRAFFICKING AND EXPLOITATION
(SCOTLAND) BILL
EXPLANATORY NOTES
(AND OTHER ACCOMPANYING DOCUMENTS)
Parliamentary copyright Scottish Parliamentary Corporate Body
Information on the Scottish Parliamentrsquos copyright policy can be found on the website -
wwwscottishparliamentuk
Produced and published in Scotland on behalf of the Scottish Parliamentary Corporate Body by APS
Group Scotland
ISBN 978-1-78534-569-2
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
PART 3 - CONFISCATION OF PROPERTY
Detention and forfeiture
Section 9 Detention of vehicle ship or aircraft
49 Section 9 sets out the power of a constable to detain a vehicle ship or aircraft if a person
has been arrested for an offence of human trafficking
50 Subsection (1) describes the circumstances where a police constable may detain a vehicle
ship or aircraft Subsection (1)(a) provides that a constable may detain a vehicle ship or aircraft
if a person has been arrested for an offence of human trafficking and the constable has
reasonable grounds to believe that a forfeiture order would be made if the person arrested were
convicted of the offence (subsection (1)(b))
51 Subsection (2) provides for the duration of the detention of the property Subsection
(2)(a) provides that the vehicle ship or aircraft may be detained until a decision is taken as to
whether or not to begin solemn proceedings against the person arrested for the offence In
circumstances where solemn proceedings have begun the property may be detained until the
person is acquitted (subsection (2)(b)(i)) the person is convicted and a decision is made whether
or not to order forfeiture of the property under section 10 (subsection (2)(b)(ii)) or the
proceedings are otherwise concluded (subsection (2)(b)(iii))
52 Subsections (3) and (4) set out the circumstances in which solemn proceedings are to be
taken to have commenced and concluded for the purposes of this section
53 Subsection (5) lists the circumstances in which a person (including the accused) with a
relevant interest in the detained property may apply to the sheriff for release of the vehicle ship
or aircraft Subsection (6) sets out the sheriffrsquos power to order release subject to satisfactory
security being tendered
54 Subsection (7) provides that the sheriff may impose such other conditions as to the
release of the detained property as the sheriff thinks fit
Section 10 Forfeiture of vehicle ship or aircraft
55 Section 10 sets out the power of the court to order forfeiture of a vehicle ship or aircraft
used or intended to be used in connection with an offence of human trafficking
56 Subsections (1) to (3) provides that forfeiture of a vehicle ship or aircraft used or
intended to be used in connection with the offence of human trafficking may be ordered if a
person convicted on indictment of that offence when the offence was committedmdash
owned the vehicle ship or aircraft
was a director secretary or manager of a company which owned it
was in possession of it under a hire purchase agreement
10
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
was a director secretary or manager of a company which was in possession of it
under a hire purchase agreement
in relation to a vehicle was driving it
in relation to a ship or aircraft was the charterer of it or was acting as captain of it
57 Subsection (4) makes special provision about cases where a ship or aircraft is to be
forfeited but the offender does not own it and was not a director secretary or manager of a
company which owns it It provides that in those circumstances forfeiture of a ship or aircraft
may only be ordered if any one of the tests listed in this subsection is satisfied Subsection (4)(a)
provides that if a person who at the time the offence was committed owned the ship or aircraft
or was a director secretary or manager of a company which owned it knew or ought to have
known of the intention to use it in the course of the commission of the offence of human
trafficking then forfeiture of a ship or aircraft may be ordered Subsection (4)(b) provides that
in the case of a ship (other than a hovercraft) if its gross tonnage is less than 500 then forfeiture
of that ship may be ordered Subsection (4)(c) provides that in the case of an aircraft if the
maximum weight at which it may take off in accordance with its certificate of airworthiness is
less than 5700 kilogrammes then forfeiture of that aircraft may be ordered under this section
Protection is provided for particular categories of owner who due to the size of the ship or
aircraft in question or the circumstances in which it is used for trafficking do not know or
reasonably suspect or are unlikely to know or reasonably suspect that the ship or aircraft is
being used in that way There is a greater likelihood that an owner of a vehicle or smaller types
of ships or aircraft will have actual or constructive knowledge that their property is being or
intended to be used for the purposes of trafficking
58 Subsection (5) provides that forfeiture cannot be ordered without giving any person
claiming an interest in the relevant property the chance to make representations
Proceeds of crime
Section 11 Proceeds of Crime Act 2002 lifestyle offences
59 Section 11 amends Schedule 4 to the Proceeds of Crime Act 2002 (―2002 Act) to
categorise all trafficking and exploitation offences as lifestyle offences for the purposes of that
Act A conviction of a lifestyle offence triggers assumptions under the 2002 Act that the accused
has a criminal lifestyle and that the accusedrsquos property is recoverable as criminal proceeds
60 Section 11(a) amends Schedule 4 to the 2002 Act by substituting paragraph 4 thereof
with a list of all offences related to trafficking and thus categorising all such offences as lifestyle
offences for the purposes of the 2002 Act Section 11(b) amends the same Schedule by inserting
a new paragraph 4A to provide that an offence under section 4 of the Bill also constitutes a
lifestyle offence
11
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
PART 4 ndash TRAFFICKING AND EXPLOITATION PREVENTION AND RISK ORDERS
Trafficking and exploitation offences
Section 12 Relevant trafficking or exploitation offences
61 Section 12 provides a list of the relevant trafficking and exploitation offences for the
purposes of trafficking and exploitation prevention and risk orders made under the Act The list
includes repealed provisions as orders (other than orders on sentencing) may still be made with
reference to convictions under such provisions
62 Subsection (2) provides that the Scottish Ministers may modify by regulations the
offences contained in the list Under section 37(2) any such regulations are subject to the
affirmative procedure
Trafficking and exploitation prevention orders
Section 13 Prevention orders on sentencing
63 Section 13 provides that a court may instead of or in addition to dealing with the person
in any other way make a trafficking and exploitation prevention order (TEPO) on sentencing of
an adult
64 Subsection (1) sets out the three circumstances where the court may make a TEPO
against a person on sentencing The first is conviction of an adult of a relevant trafficking and
exploitation offence The second circumstance is acquittal of such an offence by reason of the
special defence set out in section 51A of the Criminal Procedure (Scotland) Act 1995 (which
provides a defence where a person is unable by reason of mental disorder to appreciate the nature
or wrongfulness of their conduct) The third circumstance is a finding of unfitness for trial in
relation to such an offence under section 53F of that Act (which provides that a person is unfit
for trial if it is established on the balance of probabilities that the person is incapable by reason
of a mental or physical condition of participating effectively in that trial) In relation to the third
circumstance there must also be a finding that the adult has done the act constituting the offence
65 Subsection (3) provides that the court may make a TEPO at its own instance or on the
motion of the prosecutor
66 Subsection (4) provides the test for making a TEPO on sentencing The court must be
satisfied that there is a risk that the person in respect of whom the order is to have effect may
commit another offence mentioned in section 12 and that it is necessary to make the prohibitions
and requirements in the order for the purpose of protecting persons generally or particular
persons from the physical or psychological harm which would be likely to occur if the person
committed such an offence
67 Subsection (5) provides a definition of ―the court for the purposes of this section
12
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
Section 14 Prevention orders on application
68 Section 14 provides that the chief constable may apply to a sheriff for a TEPO against an
adult
69 Subsection (2) sets out the appropriate sheriff to whom such an application should be
made
70 Subsection (3) sets out the tests for making a TEPO on application The sheriff must be
satisfied that the person in respect of whom the order is sought is a ―relevant offender
(subsection (3)(a)) that since the person first became a relevant offender the person has acted in
a way which means that there is a risk the person will commit a relevant trafficking or
exploitation offence (subsection (3)(b)) and it is necessary to make the prohibitions or
requirements in the order for the purpose of protecting persons generally or particular persons
from the physical or psychological harm which would be likely to occur if the person committed
such an offence (subsection (3)(c))
71 Subsection (4) provides that conduct which occurred before this section came into force
may be considered when determining whether there is a risk that a person may commit a relevant
trafficking offence
Section 15 Meaning of relevant offender
72 Section 15 defines what is meant by a ―relevant offender for the purposes of section 14
73 Subsection (2) provides that a person is a relevant offender if any of the court disposals
listed in the subsection have been made in the UK in relation to that person and in respect of a
relevant trafficking or exploitation offence (as set out in section 12 of the Bill)
74 Subsections (3) to (5) deal with findings of courts and tribunals outside the United
Kingdom Subsection (3) provides that a person is a relevant offender if under the law of a
country outside the United Kingdom a listed disposal is made in respect of a person in relation
to an offence which is equivalent to an offence listed in section 12 Subsections (4) and (5) set
out tests for determining whether an offence is equivalent to a relevant offence In particular
such offences are acts which constitute offences under the law of the country concerned and
which would constitute a relevant trafficking or exploitation offence under the law of Scotland if
done in the UK by a UK national or person habitually resident in Scotland or as regards the UK
(eg by virtue of the fact that travel was arranged into out of or within the UK)
75 Subsection (6) establishes a mechanism for determining whether an act constituting an
offence in a country outside the UK would constitute an offence under the law of Scotland
76 Subsection (8) provides that for the purposes of this section convictions acquittals
findings and cautions include those which took place before this section comes into force
13
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
Section 16 Contents of prevention orders
77 Section 16 makes provision about the prohibitions or requirements (or both) that may be
contained in a TEPO Each prohibition and requirement in a TEPO is for a fixed period and the
order itself is for a fixed period The order and the prohibitions and requirements may all be for
the same period However the Bill allows some requirements and prohibitions in the order to be
set for a period shorter than that of the order if that is appropriate
78 Subsection (2) provides that both the order and any prohibition or requirement in the
order must have a specified fixed period of at least five years The only exception to that
requirement relates to a prohibition on foreign travel and an order containing only a prohibition
on foreign travel (which is dealt with in section 17) and relates to a period of not more than five
years Subsection (4) provides that a TEPO may prohibit the person in respect of whom the
order is made from doing things or require that person to do things Different prohibitions and
requirements may have effect for different periods
79 Subsection (5) provides that if the court makes a TEPO in respect of a person already
subject to such an order the earlier order will cease to have effect
80 Subsection (6) defines what is meant by ―the court for the purposes of the section
Section 17 Prohibitions on foreign travel
81 Section 17 makes provision about prohibitions on foreign travel in TEPOs
82 Subsection (1) provides that a prohibition on foreign travel contained in a TEPO and
any TEPO which contains such a prohibition and no other prohibitions or requirements must be
for a fixed period of not more than five years
83 Subsection (2) defines a prohibition on foreign travel as a prohibition on travelling to
countries outside the UK (either by reference to particular countries or generally)
84 Subsection (3)(a) determines that a prohibition on foreign travel varied or renewed by
application under section 18 or 19 may be varied or renewed for further fixed periods of no more
than five years each time Subsection (3)(b) requires that an order containing only a foreign
travel restriction may be renewed for up to that fixed period
85 Subsection (4) sets out the requirement on a person in respect of whom a TEPO
containing a prohibition on foreign travel to all countries outwith the United Kingdom has been
made to surrender at a police station each passport that the person has
86 Subsection (5) provides that any passport surrendered must be returned as soon as is
reasonably practicable after the person ceases to be subject to such a prohibition on foreign
travel Circumstances where this subsection would not apply are provided for at subsection (6)
for example where a passport has already been returned to the relevant authority
14
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
Section 18 Orders on sentencing variation renewal and discharge
87 Section 18 makes provision about varying renewing and discharging TEPOs made on
sentencing
88 Subsections (2) to (4) set out general powers in this context The person in respect of
whom the TEPO is made or the prosecutor may apply for variation renewal or discharge of such
a TEPO That application is to be made to the High Court where that court made the order and
to the sheriff otherwise Subsection (4)(b) makes provision about shrieval jurisdiction in this
connection Where the relevant court receives such an application it may vary renew or
discharge individual prohibitions or requirements or add new prohibitions or requirements it
may renew the whole order or it may discharge the whole order
89 Subsection (5) provides that the court must before making an order under this section
give an opportunity to make representations to the person in respect of whom the order is made
the prosecutor and the chief constable Subsection (6) provides that after taking into account
any such representations the court may then make such order as it thinks appropriate
90 Subsection (7) sets out the tests the court must consider when deciding whether to vary
renew or discharge TEPOs made on sentencing (including by adding new prohibitions or
requirements) or any prohibitions or requirements within them Subsection (7)(a) applies the
tests for the making of a TEPO to any variation (including an increase or a relaxation of a
requirement or prohibition) renewal or addition Subsection (7)(b) applies those tests to any
discharge of a prohibition or requirement or of an order
91 Subsection (8) makes it clear that an order varying or renewing a TEPO is subject to the
requirements and prohibitions established by sections 16 and 17 in the same way as the original
order
92 Subsection (9) defines ―prosecutor for the purposes of this section
Section 19 Orders on application variation renewal and discharge
93 Section 19 makes provision about the variation renewal or discharge of TEPOs made on
application
94 Subsections (2) to (4) set out general powers in this context The person in respect of
whom the TEPO is made or the chief constable may apply to the sheriff for variation renewal or
discharge of a TEPO made on application Subsection (4)(b) makes provision about shrieval
jurisdiction in this connection Where the sheriff receives such an application the sheriff may
vary renew or discharge individual prohibitions or requirements or add new prohibitions or
requirements renew the order so that the period of the order itself is extended or discharge the
whole order
95 Subsection (5) provides that the sheriff must before making an order under this section
give an opportunity to make representations to the person in respect of whom the order is made
15
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
and the chief constable Subsection (6) provides that after taking into account any such
representations the sheriff may then make such an order as the sheriff thinks appropriate
96 Subsection (7) sets out the tests the sheriff must consider when deciding whether to vary
renew or discharge TEPOs on application (including by adding new prohibitions or
requirements) or any prohibitions or requirements within them Those tests reflect the tests for
the making of a TEPO
97 Subsection (8) provides that when determining an application under this section the
sheriff may consider conduct which occurred before this section comes into force
98 Subsection (9) makes it clear that an order varying or renewing a TEPO is subject to the
requirements and prohibitions established by sections 16 and 17 in the same way as the original
order
Section 20 Interim prevention orders
99 Section 20 gives power to a sheriff to make an interim TEPO while the main application
under section 14 is being determined The sheriff may make such an order if the sheriff
considers it just to do so (subsection (1)) and such an order may contain prohibitions or
requirements (or both) in relation to the person in respect of whom the order is to have effect
(subsection (2)) Those prohibitions or requirements may relate to things to be done or not done
in any part of Scotland or anywhere outwith Scotland (subsection (3))
100 Subsection (4) provides that an interim TEPO will only have effect for a fixed period
specified in the order and will cease to have effect on the determination of an application for a
TEPO under section 14 if that fixed period has not expired
101 Subsection (5) allows for an application to a sheriff in the sheriffdom of the sheriff who
made the interim TEPO for variation or discharge of that order Such an application may be
made by the person in respect of whom the order was made or the chief constable
Section 21 Appeals prevention orders
102 Section 21 provides for an appeals process in relation to TEPOs and interim TEPOs
103 Subsection (1) makes provision about TEPOs made on sentencing and any variation or
renewal of such a TEPO These are to be treated as sentences for the purposes of any appeal
104 Subsections (2) (3) and (4) make provision about appeals in relation to TEPOs made on
application any variation or renewal of such a TEPO and interim TEPOs The person in respect
of whom the order was made or the chief constable may appeal against any of these orders
16
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
Trafficking and exploitation risk orders
Section 22 Risk orders
105 Section 22 provides that the chief constable may apply to a sheriff for a trafficking and
exploitation risk order (TERO) against an adult A TERO differs from a TEPO in that it may be
made where a person has not previously been convicted of a trafficking or exploitation offence
but the personrsquos behaviour indicates a risk that others may be at harm as a result of that person
committing such an offence and intervention at an early stage is necessary to prevent that harm
A TEPO can only be made where a relevant offence has already been committed
106 Subsection (2) sets out the appropriate sheriff to whom an application for such an order
may be made
107 Subsection (3) sets out the tests for making a TERO The sheriff may only make an order
if satisfied that the person in respect of whom the order is sought has acted in a way which
means that there is a risk the person may commit a relevant trafficking or exploitation offence
(subsection (3)(a)) and it is necessary to make the prohibitions or requirements in the order for
the purpose of protecting persons generally or particular persons from the physical or
psychological harm which would be likely to occur if the person committed such an offence
(subsection (3)(b))
108 Subsection (4) provides that in assessing those tests the sheriff may consider conduct
which occurred before this section comes into force
Section 23 Contents of risk orders
109 Section 23 makes provision about the prohibitions or requirements (or both) that may be
contained in a TERO Each prohibition and requirement in a TERO is for a fixed period and the
order itself is for a fixed period The orders and the prohibitions or requirements may all be for
the same period However the Bill allows some requirements and prohibitions in the order to be
set for a shorter period if that is appropriate
110 Subsection (2) provides that both the order and any prohibition or requirement in the
order must have a specified fixed period of at least two years However this does not apply to a
prohibition on foreign travel or to an order that contains a prohibition on foreign travel and no
other prohibitions or requirements Such a prohibition (or an order containing only such a
prohibition) must be for a fixed period of no more than five years under section 24(1))
111 Subsection (4) provides that a TERO may prohibit the person in respect of whom the
order is made from doing things or require that person to do things Different prohibitions and
requirements may have effect for different periods
112 Subsection (5) provides that if the sheriff makes a TERO in relation to a person already
subject to such an order the earlier order will cease to have effect
17
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
Section 24 Prohibitions on foreign travel
113 Section 24 makes provision about prohibitions on foreign travel contained in a TERO
114 As noted above subsection (1) provides that a prohibition on foreign travel contained in a
TERO and any TERO which contains such a prohibition and no other prohibitions or
requirements must be for a fixed period of not more than five years
115 Subsection (2) defines a ―prohibition on foreign travel as a prohibition on travelling to
countries outwith the UK (either by reference to particular countries or generally)
116 Subsection (3)(a) determines that a prohibition on foreign travel varied or renewed under
section 25 may be varied or renewed for further fixed periods of no more than five years each
time Subsection (3)(b) requires that an order containing only a foreign travel restriction may be
renewed for up to that fixed period
117 Subsection (4) sets out the requirement on a person in respect of whom a TERO has been
made containing a prohibition on foreign travel to all countries outwith the United Kingdom to
surrender at a police station each passport that the person has Subsection (5) provides that any
passport surrendered must be returned as soon as is reasonably practicable after the person
ceases to be subject to a prohibition on foreign travel to all countries outwith the United
Kingdom Circumstances where this subsection would not apply are provided for at subsection
(6) for example where a passport has already been returned to the relevant authority
Section 25 Variation renewal and discharge of risk orders
118 Section 25 makes provision about the variation renewal or discharge of TEROs
119 Subsections (1) to (3) set out general powers in this context The person in respect of
whom the TERO is made or the chief constable may apply to the sheriff for variation renewal or
discharge of a TERO Subsection (3) makes provision about shrieval jurisdiction in this
connection Where the sheriff receives such an application the sheriff may vary renew or
discharge individual prohibitions or requirements or add new prohibitions or requirements
renew the whole order or discharge the whole order
120 Subsection (4) provides that the sheriff must before making an order under this section
give an opportunity to make representations to the person in respect of whom the order is made
and the chief constable Subsection (5) provides that after taking into account any such
representations the sheriff may then make any order the sheriff considers appropriate
121 Subsection (6) sets out the tests the sheriff must consider when deciding whether to vary
renew or discharge TEROs (including by adding new prohibitions or requirements) or any
prohibitions or requirements within them Subsection (6)(a) applies the tests for the making of a
TERO to any variation (including an increase or a relaxation of a requirement or prohibition)
renewal or addition Subsection (6)(b) applies those tests to any discharge of a prohibition or
requirement or of an order
18
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
Section 26 Interim risk orders
122 Section 26 provides that a sheriff may make an interim TERO while the main application
under section 22 is being determined The sheriff may make such an order if the sheriff
considers it just to do so (subsection (1)) and such an order may contain prohibitions or
requirements (or both) in relation to the person in respect of whom the order is to have effect
(subsection (2)) Those prohibitions or requirements may relate to things to be done or not done
in any part of Scotland or anywhere outwith Scotland (subsection (3))
123 Subsection (4) provides that an interim TERO will only have effect for a fixed period
specified in the order and will cease to have effect on the determination of the main application
if that fixed period has not already expired
124 Subsection (5) allows for an application for variation or discharge of an interim TERO
(or a requirement or prohibition in the order) to be made to a sheriff in the sheriffdom of the
sheriff who made the interim order by the person in respect of whom the order was made or the
chief constable (subsection (6))
Section 27 Appeals risk orders
125 Section 27 provides for an appeals process in relation to TEROs and interim TEROs and
any order varying or renewing such a TERO or interim TERO The person in respect of whom
the order was made or the chief constable may appeal against any of these orders
Offences and supplementary provision
Section 28 Offences
126 Section 28 makes provision about breach of TEPOs and TEROs
127 Subsections (1) and (2) provide that a person commits an offence if that person does
anything which the person is prohibited from doing by an order or fails to do anything which the
person is required to do by a TEPO or a TERO or an interim TEPO or TERO
128 Subsection (3) makes provision about penalties in relation to these offences A person
who commits an offence under this section is liable on summary conviction to imprisonment for
a term not exceeding 12 months or a fine not exceeding the statutory minimum (or both) On
conviction on indictment that person is liable to imprisonment for a term not exceeding five
years or a fine (or both)
Section 29 Enforcement of other UK orders
129 Section 29 provides that the Scottish Ministers may modify by regulations the list of
orders at section 28(2) so that a breach of those orders in Scotland constitutes an offence under
section 28(1) The orders which may be added are ―relevant UK orders Those are described in
subsection (2) as orders under the law of England and Wales or Northern Ireland which appear to
the Scottish Ministers to be equivalent or similar to TEPOs TEROs or interim TEPOs or
TEROs
19
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
Section 30 Interpretation of Part 4
130 Section 30 defines certain terms used in Part 4
PART 5 - STRATEGY AND REPORTING
Section 31 Trafficking and exploitation strategy
131 Section 31 places a duty on the Scottish Ministers to prepare a trafficking and
exploitation strategy The strategy under this section is a strategy which sets out such actions
arrangements and outcomes as the Scottish Ministers consider appropriate in relation to the
conduct which constitutes an offence under this Act
132 Subsection (3) lists some of the matters which may be set out in the strategy though that
list is not exhaustive Those matters include for example training and awareness raising in
relation to the detection and prevention of the conduct which constitutes an offence of human
trafficking or an offence under section 4
Section 32 Review and publication of strategy
133 Subsection (1) of section 32 provides that the strategy prepared under section 31 must be
reviewed by the Scottish Ministers every three years Following a review the Scottish Ministers
are required by subsection (2) to prepare a report on the review including an assessment of the
extent to which the strategy has been complied with and may prepare a revised strategy If a
decision is taken following such a review not to prepare a revised strategy the Scottish Ministers
must set out their reasons for that decision
134 Subsection (4) places a duty on the Scottish Ministers to consult with those likely to have
an interest in the strategy before preparing or reviewing the strategy Those likely to have an
interest include but are not limited to businesses support agencies faith based groups etc
135 Subsection (5) requires the Scottish Ministers to publish and lay before the Scottish
Parliament each strategy and report prepared under this section
Section 33 Duty to co-operate on strategy
136 Section 33 provides that Scottish public authorities as specified in regulations that may
be made by the Scottish Ministers must provide such information and assistance as the Scottish
Ministers may reasonably require and otherwise co-operate with the Scottish Ministers in the
preparation or review of the strategy A specified public authority could include for example
Police Scotland and local authorities
Section 34 Duty to notify and provide information about victims
137 Section 34 places a duty on specified Scottish public authorities to notify the chief
constable of the Police Service of Scotland about a person who is or appears to be a victim of
20
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
an offence under section 1 or section 4 This duty would not affect any other general right to
report information relating to crime
138 Subsection (2) requires that a notification relating to an adult is anonymised and does not
include any information that identifies the adult or enables the adult to be identified unless the
adult consents to that data being provided
139 Subsection (3) provides that the Scottish Ministers may by regulations specify the
Scottish public authorities who are to be subject to this duty and may make provision about the
information to be included in the notification The regulations will be subject to the negative
procedure
PART 6 ndash FINAL PROVISIONS
Section 35 Offences by bodies corporate etc
140 Section 35 provides that where an offence under the Bill was committed by a body
corporate or a Scottish partnership or other unincorporated association and it is proved that the
offence was committed with the consent or connivance of or was attributable to any neglect on
the part of a relevant individual or someone purporting to be acting in the capacity of a relevant
individual that individual as well as the body corporate partnership or unincorporated
association commits the offence and is liable to be proceeded against and punished accordingly
141 Subsection (2) defines what is meant by a ―relevant individual for the purpose of this
section
Section 36 Interpretation
142 Section 36 defines certain terms for the purposes of the Bill for example the definition
of ―travel
Section 37 Regulations
143 The Scottish Ministers are given various powers under this Bill to make regulations
Section 37 provides for the parliamentary procedure which is to be applicable in relation to each
of those powers
Section 38 Ancillary provision
144 Section 38 provides that the Scottish Ministers may make regulations containing such
incidental supplementary consequential transitional transitory or saving provision as they
consider necessary or expedient for the purposes of or in connection with the provisions of the
Bill
21
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
Section 39 Minor and consequential amendments
145 Section 39 introduces the schedule which makes minor amendments and amendments
consequential on the provisions of the Bill Given their replacement in Part 1 of the Bill the
schedule repeals the current offences in relation to human trafficking (section 22 of the 2003 Act
and section 4 of the 2004 Act) and slavery servitude and forced or compulsory labour (section
47 of the 2010 Act)
Section 40 Crown application
146 Section 40(1) provides that none of the provisions made by or under the Act are capable
of making the Crown criminally liable In accordance with subsection (2) enforcement of
offences against the Crown is to be done by the Scottish Ministers or any other public body or
office-holder with responsibility for enforcing the provision applying to the Court of Session for
a civil declarator of non-compliance This provision does not apply to persons in the public
service of the Crown
Section 41 Commencement
147 Section 41 provides that sections 36 37 38 40 41 and 42 of the Bill come into force on
the day after Royal Assent All other provisions are to come into force on a day appointed by
regulations made by the Scottish Ministers
22
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
FINANCIAL MEMORANDUM
INTRODUCTION
1 This document relates to the Human Trafficking and Exploitation (Scotland) Bill (―the
Bill) introduced in the Scottish Parliament on 11 December 2014 It has been prepared by the
Scottish Government to satisfy Rule 932 of the Parliamentrsquos Standing Orders It does not form
part of the Bill and has not been endorsed by the Parliament
2 The purpose of the Bill is to consolidate and strengthen the existing criminal law against
human trafficking and exploitation and enhance the status and support provided to victims Bill
provisions are in the following Partsmdash
Part 1 (Offences) includes provision on the creation of a single offence of human trafficking
for all types of exploitation of both adults and children establishes statutory aggravators of
human trafficking for use with other crimes and reframes the current standalone offence of
slavery servitude and forced or compulsory labour
Part 2 (Protection of victims) includes provision on prosecutorial guidelines for the
prosecution of victims and provision about the support and assistance to which adult victims
are entitled
Part 3 (Confiscation of property) includes provision on detention and forfeiture of property
and proceeds of crime
Part 4 (Trafficking and exploitation prevention and risk orders) includes provision on
two new preventive orders the trafficking and exploitation prevention order and the
trafficking and exploitation risk order
Part 5 (Strategy and reporting) includes provision on the trafficking and exploitation
strategy and the duty on specified Scottish public authorities to notify and provide
information about victims
Part 6 contains general and ancillary provisions
3 This Financial Memorandum considers the financial implications of each of the elements
of the Bill where relevant
BACKGROUND
4 Before considering the financial implications associated with the specific provisions
within the Bill it is important to consider both the current estimated extent of human trafficking
in Scotland and existing activity by public bodies and others in response to this issue
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These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
Extent of human trafficking in Scotland
5 Human trafficking is by its nature a hidden crime The National Referral Mechanism
(NRM) is the process set up by the UK Government to identify and support victims of trafficking
in the UK The NRM is also the mechanism by which the UK Human Trafficking Centre
collects data about potential victims of trafficking Information about suspected child and adult
victims of human trafficking is referred by relevant ―first responder organisations such as the
police and third sector bodies for example Migrant Help and the Trafficking Awareness Raising
Alliance (TARA) Referrals relate to victims trafficked from outside and within the UK The
table below summarises the most recent available information on NRM referrals from first
responder organisations in Scotland
Table 1 Recent referrals from first responders in Scotland of potential child and adult
human trafficking victims to the National Referral Mechanism
2012 2013
Adults 67 77
Children 29 22
Total 96 99
of all UK Referrals 8 6
Source National Crime Agency National Referral Mechanism Statistics 2012 and 20131
6 Various reports confirm that the number of victims referred through the NRM is likely to
be a significant underestimate of the actual number of potential victims of trafficking For
example the Equality and Human Rights Commission Inquiry into Human Trafficking in
Scotland (2011) noted ―estimates of identified potential victims do not reflect what is likely to be
a much greater number of unidentified victims2
7 The UK National Crime Agency (NCA) Strategic Assessment of the Nature and Scale of
Human Trafficking in the UK3 aims to provide an indication of the nature and scale of human
trafficking beyond the number of referrals to the NRM The assessment is produced using
intelligence held by the NCA the NRM and intelligence information collected from agencies
such as Police Scotland the Home Office Gangmastersrsquo Licensing Authority and non-
government organisations The assessment removes information of potential victims referred to
the NRM who have received a negative ―reasonable grounds or ―conclusive decision (ie it
has been confirmed that they are not victims of trafficking) or duplicate information about
individuals (ie the same person has been referred more than once or by more than one agency)
to show a total number of ―unique potential victims of trafficking The NCA Assessment for
2013 indicated that there were significantly more unique potential victims of human trafficking
identified across the UK than the numbers referred to the NRM even excluding those that
received a negative decision and that the number of unique victims was increasing
1 httpwwwnationalcrimeagencygovukpublications399-nca-strategic-assessment-the-nature-and-scale-of-
human-trafficking-in-2013file 2httpwwwequalityhumanrightscomsitesdefaultfilesdocumentsScotlandHuman_Trafficking_in_Scotland_inq
uiry_into_human_trafficking_in_scotland-full-report_pdf_pdf 3 httpwwwnationalcrimeagencygovukpublications399-nca-strategic-assessment-the-nature-and-scale-of-
human-trafficking-in-2013file
24
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
Table 2 Comparison of recent UK referrals to the National Referral Mechanism and the
National Crime Agency Strategic Assessment of the Scale of Human Trafficking
2012 2013 Change
Referred to NRM 778 1095 +41
NCA Assessment No of
Unique Potential Victims
Identified
2255 2744 +22
Source National Crime Agency Strategic Assessment of the Nature and Scale of Human
Trafficking in the UK4
8 For Scotland the NCA Assessment for 2013 identified 55 unique potential victims of
human trafficking compared with 99 referrals to the NRM It is not known why in contrast to
the position in England and Wales the NCA Assessment for Scotland is lower than the NRM
referrals although it will exclude potential victims who received a negative conclusive decision
and duplicate referrals However these numbers must be treated with significant caution There
remains strong conviction amongst law enforcement bodies and victims organisations that there
are more victims of trafficking than are identified and that even once identified victims are
often unwilling to engage with authorities or identify themselves as having been trafficked For
the purpose of this Financial Memorandum the Scottish Government has accepted the NCA
assessment that there are likely to be between two and three times as many potential victims of
trafficking as are currently identified through the NRM This assessment is based on the Scottish
Governmentrsquos best understanding of the hidden nature of this crime and the known reluctance of
some victims to identify their trafficked status or to engage with public authorities
Criminal justice response to human trafficking and exploitation
9 There have been relatively few prosecutions and convictions for human trafficking
offences under existing criminal justice legislationmdash
The Criminal Justice (Scotland) Act 20035 (―the 2003 Act) provides for offences of
trafficking for the purposes of exploitation by way of prostitution
The Asylum and Immigration (Treatment of Claimants etc) Act 20046 (―the 2004
Act) provides for offences of trafficking for labour and other forms of exploitation
The Criminal Justice and Licensing (Scotland) Act 20107 (―the 2010 Act) amended
and extended the 2003 and 2004 Acts and created a standalone offence of holding
someone in slavery or servitude or requiring a person to perform forced or
compulsory labour
10 The first successful convictions for human trafficking in Scotland were in 2011 under
section 22 of the 2003 Act for trafficking for the purposes of prostitution During 2013 a total of
four people were convicted of human trafficking offences - one person under section 22 of the
2003 Act and three people under section 4 of the 2004 Act for trafficking for forced marriage
4 httpwwwnationalcrimeagencygovukpublications399-nca-strategic-assessment-the-nature-and-scale-of-
human-trafficking-in-2013file 5 httpwwwlegislationgovukasp20037
6 httpwwwlegislationgovukukpga200419
7 httpwwwlegislationgovukasp201013
25
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
The average custodial sentence length for those convicted of trafficking offences was 847 days
(just under two years and four months) as well as any confiscation order imposed
11 Although the number of convictions for trafficking offences has been small police and
the Crown Office and Procurator Fiscal Service (COPFS) have confirmed that even though it is
not possible to always prove the trafficking offence where a credible suspicion exists people
suspected of involvement with trafficking can and often are prosecuted and convicted for other
crimes such as crimes associated with prostitution forced marriage immigration offences and
drugs offences etc
12 Police Scotland has established a dedicated National Human Trafficking Unit to enhance
the police response to human trafficking through awareness raising intelligence gathering
training and providing divisions with advice and specialist knowledge The COPFS has
appointed dedicated expert fiscals to prosecute human trafficking offences
Support for victims of trafficking
13 The Scottish Government currently allocates direct grant funding to non-government
organisations to provide and facilitate immediate support and assistance to the adult victims of
human trafficking This support can include immediate safe accommodation psychological
support assistance in accessing medical treatment material assistance interpretation and
translation and assistance either with repatriation or securing longer-term access to mainstream
services and support such as welfare benefits and housing The provision of support and
assistance is not conditional on the potential victim being willing to participate in the criminal
justice process Under the NRM victims of trafficking are guaranteed ―a recovery and reflection
period to recover from their experience escape the influence of those alleged to have trafficked
or exploited them and consider whether to engage with authorities The Council of Europe
Convention on Action Against Trafficking in Human Beings8 provides for a reflection period of
at least 30 days for all trafficked victims when there are reasonable grounds to believe that the
person concerned is a victim The current minimum recovery and reflection period in Scotland
and the rest of the UK is 45 days
14 In 2013-14 total grant funding of pound723000 was provided by the Scottish Government
towards the costs of ensuring immediate support and assistance for the adult victims and
potential victims of trafficking in Scotland This funding was provided through two non-
government organisationsmdash
the TARA Service which works with women aged 18 years and over across
Scotland where there are concerns that they have been trafficked for commercial
sexual exploitation and
Migrant Help a UK-wide organisation providing support and advice services to
migrants including new asylum claimants refugees EU nationals etc
15 Support for the child victims of trafficking is co-ordinated by local authorities as part of
their child protection arrangements and in line with the policy intention that children remain
8 httpwwwcoeinttdghlmonitoringtraffickingdocsconvntnCETS197_enasp
26
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
children first and that their needs should be treated accordingly The Scottish Government has
produced a toolkit for agencies working with children and young people to ensure that staff are
able to identify trafficked children and make appropriate referrals so that victims can receive
protection and support The toolkit is designed to be used in conjunction with National Child
Protection Guidance9 which was first published in 2010 and refreshed in 2014 and other
relevant national and international guidance Information about current expenditure on child
victims of trafficking is not recorded separately from information about wider expenditure on
child protection services
Lord Advocate guidance on prosecution policy
16 In his letter of 21 January 2013 to the Scottish Parliament European and External
Relations Committee10
the Lord Advocate set out the current arrangements for fiscals
considering the prosecution of a confirmed or potential victim of human trafficking where it is
believed or claimed that the crime was committed as a direct consequence of the personrsquos
trafficked status The letter set out the basis for the current Lord Advocatersquos guidance to
prosecutors including the presumption against the prosecution of a credible trafficking victim
for crimes that arise as a consequence of the victimrsquos trafficked status
Human trafficking strategic approach awareness raising and training
17 The first Scottish Human Trafficking Summit was hosted by the Cabinet Secretary for
Justice in October 2012 The summit brought together key law enforcement public private and
third sector organisations with an interest in human trafficking Following the summit a number
of strategic collaborative actions were agreed and progressed including with reference to
awareness raising and training for frontline staff data collection and analysis identification care
and support for both child and adult victims of trafficking and enhancing enforcement
18 One specific workstream related to awareness raising and training of front-line staff
likely to come into contact with trafficking victims or potential instances of trafficking
Following the summit Police Scotland with support from the Scottish Government and others
prepared published and circulated widely an awareness raising leaflet ndash Reading the Signs11
ndash to
assist police officers and staff in other front line posts in identifying the signs of potential
trafficking The Scottish Government also participated with the UK Government in a UK-wide
public awareness raising campaign about modern slavery and trafficking
19 In addition to general awareness raising specific training material was prepared for key
front-line staff For example all police officers were required to undertake an e-learning course
on human trafficking A special leaflet for health workers was prepared and circulated by NHS
Health Scotland An e-learning module for health workers about their role in identifying and
9 httpwwwscotlandgovukPublications2014053052
10httpwwwscottishparliamentukS3_EuropeanandExternalRelationsCommitteeGeneral20DocumentsLetterfro
mTheLordAdvocatepdf 11
httpwwwscotlandpoliceukassetspdf174967human-traffickingview=Standard
27
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
responding to victims of trafficking was made available through the National Gender Based
Violence and Health Programme12
IMPACT OF SPECIFIC PROVISIONS
PART 1 - OFFENCES
Single trafficking offence
20 The Bill establishes a new single offence of human trafficking for all types of
exploitation for both adults and children replacing existing separate criminal offences (see
paragraph 9 above) As noted above to date there have been relatively small numbers of
prosecutions under existing trafficking offences
21 The maximum penalty for conviction on indictment for the single trafficking offence will
be life imprisonment compared with a maximum of 14 years for the current separate offences
Although it will be for the court to decide how to sentence people convicted under the new single
offence in any given case it is likely that the availability of a higher maximum sentence will
have cost implications for the Scottish Prison Service (SPS)
Revised slavery servitude and forced labour offence
22 The Bill will also repeal and replace the existing exploitation offence within section 47 of
the 2010 Act which criminalises holding someone in slavery or servitude or requiring them to
perform compulsory or forced labour The offence will be revised and strengthened to allow the
court to consider in assessing whether a person has been a victim of an offence the victimrsquos
characteristics such as age physical or mental illness disability or where relevant family
relationships The maximum penalty for the offence will be increased from 14 years for the
current offence to life imprisonment for a conviction on indictment
Statutory aggravators
23 The Bill makes provision for statutory aggravators which apply in cases where an
accused person commits an offence connected with human trafficking and for when the offence
is committed in connection with the accusedrsquos position as a public official The court must take
the aggravation into account in determining the appropriate sentence if it is proved that the
offence is aggravated in this way The statutory aggravator is not anticipated to have any
substantial financial implications for public private or third sector bodies or for individuals
Costs on the Scottish Administration
24 Consolidating and clarifying the existing criminal law on trafficking and exploitation
alongside other measures arising from the Bill and the trafficking and exploitation strategy
including training and awareness raising and support for victims should increase the potential
for successful investigations prosecutions and convictions of human trafficking and exploitation
offences There have been six successful prosecutions for a specific trafficking offence to date in
Scotland with an average custodial sentence length of two years and four months against a
12
httpwwwgbvscotnhsuk
28
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
maximum possible sentence of 14 years The maximum number of prosecutions in any one year
was four individuals in two separate cases
25 Police and prosecutors already have in place specialist resources for investigating and
prosecuting human trafficking and exploitation offences and these provisions will not add to
these costs Law enforcement agencies have confirmed that whilst the number of prosecutions
for specific trafficking offences has been low where victims are identified but are unwilling to
testify individuals suspected of trafficking and exploitation will be prosecuted in court for other
related offences The Lord Advocate has identified that ―If we donrsquot have the evidence [to
prosecute for a specific human trafficking offence] we prosecute for fraud ID theft or asylum
and immigration offences13
26 The Scottish Government does not anticipate therefore significant additional cost
implications for law enforcement agencies or courts as cases will often proceed with a
trafficking offence alongside or in place of other related offences For the same reason the
Scottish Government does not anticipate significant additional cost on the Scottish Legal Aid
Board (SLAB) However if it is assumed that the number of successful trials proceeding in any
single year doubles from two to four there would be some additional costs on the COPFS the
Scottish Court Service (SCS) and SLAB based on the average unit costs for cases proceeded
either through Sheriff Court Solemn procedure or through the High Court These estimated costs
depending on whether cases are proceeded through the High Court or Sheriff Court solemn
procedure are illustrated in the table below
Table 3 Estimated unit costs of additional trial procedures through either High Court or
Sheriff Court solemn procedure (pound000)
Average prosecution
costs per procedure
(COPFS)
Average court costs
per procedure (SCS)
Average legal aid
costs per procedure
(SLAB)
Sheriff Court solemn
procedure (pound000) pound49 pound19 pound16
High Court (pound000) pound556 pound90 pound135
Estimated average
costs of 2 additional
trial procedures 4
accused per annum
(pound000)
pound99-pound1112 pound38-pound180 pound64-pound540
Source costs of the Criminal Justice System in Scotland Dataset (2013)14
27 There will also be costs to the SPS both through any increase in the number of successful
convictions for trafficking and exploitation offences and an anticipated increase in the average
length of custodial sentence for these crimes It is not possible to know for certain the total
13
httpwwwdailyrecordcouknewsscottish-newsonly-three-successful-prosecutions-brought-4457684 14httpwwwscotlandgovukTopicsStatisticsBrowseCrimeJusticePublicationscostcrimjustsc
otcostcrimjustdatasethttpwwwscotlandgovukTopicsStatisticsBrowseCrimeJusticePublicationscostcrimj
ustscotcostcrimjustdataset
29
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
number of future convictions or what sentencing decisions might be taken by courts in individual
cases
28 The table below illustrates the potential cost implications of either maintaining or
increasing the current maximum number of convictions in any individual year from four to eight
convictions For the purpose of the calculation it is assumed that the average custodial sentence
length for trafficking and exploitation offences will increase from two years and four months
(classified as a short-term sentence) to over four years (classified as a long-term sentence) as
increasing the maximum sentence to life imprisonment is anticipated to increase the average
sentence for a trafficking offence The estimated average annual cost of a prison place based on
SPS figures is pound42500 Taking account of the current early release arrangements for long-term
prisoners and the overlapping of individual sentences would result in an estimated increase of 8
to 21 total prison places each year after four years ndash ie with an additional four people receiving
custodial sentences each year and released by the Parole Board at the halfway point of their
sentence or automatically at the two-thirds point The total costs to the SPS will be within a
range of pound340000 to pound890000 These costs will fit within the overall budget costs to the SPS
As at 17 October 2014 there were 7731 people in custody in Scotland An additional 21 places
accounts for 03 of the total prison population
Table 4 Estimated range of costs to the Scottish Prison Service from increasing the
number and average length of successful prosecutions for trafficking offences
Year 1 Year 2 Year 3 Year 4
Additional Prison places 0-4 4-12 8-17 8-21
Additional Cost (pound000) pound0-pound170 pound170- pound510 pound340-pound720 pound340-pound890
Table 5 Estimated range of combined costs for trial procedures and prison places
Year 1 Year 2 Year 3 Year 4
Additional Cost (pound000) pound20-pound353 pound190- pound693 pound360-pound900 pound360-pound1073
Costs on other bodies individuals and businesses
29 There will be no new costs falling on other bodies individuals and businesses as a
consequence of these sections but see the section below with reference to victim support
Costs on local authorities
30 There will be no new costs falling on local authorities as a consequence of these specific
sections
PART 2 - PROTECTION OF VICTIMS
Duty on the Lord Advocate to publish guidance about the prosecution of credible trafficking and
exploitation victims who have committed offences
Costs on the Scottish Administration
31 As noted above the Lord Advocate already prepares and publishes guidance to fiscals
about the prosecution of credible victims of human trafficking for crimes committed as a direct
30
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
consequence of their trafficking status The requirement to publish such guidance would in
future be statutory However there will be no new costs on the Scottish Government or the
COPFS as a consequence of placing the requirement for the Lord Advocate to issue this
guidance on a statutory basis
Costs on other bodies individuals and businesses
32 There will be no new costs falling on other bodies individuals and businesses as a
consequence of these sections
Costs on local authorities
33 There will be no new costs falling on local authorities as a consequence of these sections
Ensure the rights of victims to access and support
34 The Bill will place a statutory duty on the Scottish Ministers to secure the provision of
relevant immediate support and recovery services for adult victims of trafficking subject to an
assessment of need The Bill will specify those victims or potential victims entitled to support
and the minimum time periods during which such services should be provided Specifically the
Bill will require Ministers to provide support and assistance based on each individualrsquos assessed
needs during the recovery and reflection period (currently 45 days) during which the
individualrsquos trafficking status is determined The Bill specifies minimum support and assistance
that should be considered as part of the assessment including access to housing treatment
interpretation services etc The Scottish Ministers have the flexibility to provide support and
assistance outwith the specified reflection and recovery period where this is considered
appropriate
35 As noted above the Scottish Ministers already provide grant funding totalling pound723000
to third sector organisations to assist identified adult potential victims of trafficking Provision of
support to adult victims will be placed on a statutory basis The number of adult potential victims
of trafficking referred through the NRM during 2013 was 77 although not all of these will have
requested assistance or received the full range of support services It is assumed that other
actions arising from the Bill including the single offence and publication of the trafficking and
exploitation strategy will result over time in an increase in identified victims and requests for
assistance and support
Costs on the Scottish Administration
36 The Scottish Government anticipates that improved awareness raising and training of
front-line staff will result in an increase in the number of victims identified over time It is not
possible to know how quickly this improvement will be achieved However between 2012 and
2013 the number of potential identified victims across the UK identified through the NCA
strategic assessment and NRM increased by 22 and 41 respectively Given the need for
awareness raising and training to impact the Scottish Government does not anticipate a similar
scale of increase in the immediate term but the Government considers it reasonable to anticipate
a possible increase of between 10 and 20 per annum in the overall number of requests for
assistance and support each year over the next four years Assuming a similar mix of needs as
31
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
current victims the increased costs to the Scottish Government on top of existing funding
would range between pound290000 to pound580000 per annum by year four
Table 6 Estimated range of costs increases for victim support and assistance (pound000)
Year 1 Year 2 Year 3 Year 4
Additional Cost (pound000) pound0-pound140 pound140-pound280 pound220-pound430 pound290-pound580
Costs on other bodies individuals and businesses
37 There will be no additional costs on other public bodies individuals or businesses
associated with these specific provisions There will be no direct additional costs falling on third
sector organisations as a consequence of the specific provisions It is likely however that all or
part of the additional funding identified above will be directed by the Scottish Government
through relevant third sector organisations with the expertise to provide immediate support and
protection to victims
Costs on local authorities
38 The Bill creates no new legislative requirements for the delivery of childrenrsquos services
recognising that this already exists It is therefore not anticipated that the Bill will result in any
quantifiable additional costs on local authorities or other public bodies as a result of support for
child victims Child victims of trafficking are supported as part of the Getting It Right for Every
Child (GIRFEC) approach any child whether identified as trafficked or not will be assessed on
the basis of its needs It is anticipated that as a consequence of the strategy (for which the Bill
provides) that more children may be identified as trafficked It is noted however that various
reports including most recently the UK Governmentrsquos NRM Review Report15
have found that
children who are already receiving support from relevant authorities in the UK are often not
identified as trafficked victims because of lack of awareness of the referral process It may be
that actions arising from the development of the strategy and dialogue with stakeholders will
give rise to additional activity or costs with reference to child victims of trafficking but these are
not known and cannot be estimated at this time
PART 3 - CONFISCATION OF PROPERTY
39 The Bill will provide police with powers to detain the property such as cars boats etc of
a person arrested for a trafficking offence This power will be exercised at the time of arrest and
is not expected to impose any additional costs on the police or others
Costs on the Scottish Administration
40 There will be no additional costs on the Scottish Government as a result of these
provisions Individuals can apply to the court to have vehicles ships or aircraft released from
detention This will be considered as part of the overall case and will not add to the costs to the
criminal justice system
15
httpsnrmhomeofficegovuk
32
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
Costs on other bodies individuals and businesses
41 There will be no additional costs on other public bodies individuals or businesses
including Police Scotland as a result of these specific provisions
Costs on local authorities
42 There will be no additional costs on local authorities as a result of these specific
provisions
PART 4 - TRAFFICKING AND EXPLOITATION PREVENTION AND RISK ORDERS
Introduce new measures to disrupt and prevent trafficking and exploitation
43 The Bill will introduce two new civil orders and associated interim orders to assist in
preventing trafficking and exploitation Trafficking and Exploitation Prevention Orders (TEPOs)
and Trafficking and Exploitation Risk Orders (TEROs) Where an individual has been convicted
of a trafficking or exploitation offence or an offence with a statutory trafficking aggravator a
TEPO may be imposed by a court where there is a risk that that individual may commit a further
human trafficking offence and it is necessary to make the order to protect people from the
physical or psychological harm which might occur if such an offence were committed The
TEPO will prevent the individual from engaging in activities described in the order Where a
person has not been convicted of a trafficking or exploitation offence but a court considers that
the person presents a significant risk of harm to others through the individual committing a
trafficking or exploitation offence the court can impose a TERO restricting specific activities or
imposing requirements These orders will be civil but breach of an order will constitute a
criminal offence with a maximum penalty of five years in prison available to the court
44 The Bill will categorise the trafficking and exploitation offences as lifestyle offences in
order to automatically trigger provisions within the Proceeds of Crime Act 2002 (―the 2002
Act) The definition of an offence as a ―lifestyle offence allows for proceedings under the
2002 Act to confiscate assets or monies from the individual convicted of the offence
Costs on the Scottish Administration
45 The purpose of TEPOs and TEROs is to prevent criminal activity associated with
trafficking and exploitation from arising There will be some cost implications for law
enforcement organisations which will need to monitor the terms of any order imposed by the
courts However these will be offset by the savings made from being able to intervene at an
early stage of criminality if an order has been breached For the equivalent civil orders within the
UK Modern Slavery Bill the UK Government has estimated potential net savings of between
pound130000 and pound1090000 per annum The Scottish Government has not incorporated any
savings for the purpose of Scottish legislation but expects the costs of implementing TEPOs and
TEROs and detention powers to be at least cost neutral for the Scottish Administration and other
public bodies
33
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
46 The Bill will give courts powers to impose a TEPO at the time of sentencing There will
be no immediate additional costs for the courts or COPFS associated with TEPOs imposed as
part of sentencing The Chief Constable of Police Scotland will also be able to apply to the court
for a TEPO to be imposed on a relevant offender previously convicted of a trafficking offence
There will be costs to Police Scotland in making the application and to the SCS and to SLAB in
considering the application As there have been only six previous convictions for trafficking
offences in Scotland the Scottish Government expects the number of applications for TEPOs for
previous convictions to be small one-off and will not add to the overall costs of the criminal
justice system The Chief Constable of Police Scotland can also apply to the court for a TERO
against an individual where it is considered that that individual is likely to commit a trafficking
offence
47 Looking at the equivalent costs for similar civil orders eg Sexual Offences Prevention
Orders the total costs to the SCS the COPFS and SLAB of applying for a TERO or post-
sentencing TEPO are estimated at between pound1000 and pound6000 per order It is not possible to
know how many TEPOs or TEROs might be applied for but assuming a number half the level of
the estimated maximum number of potential convictions for trafficking offences each year (four
to eight) would give estimated costs of between pound2000 (2 x pound1000) and pound24000 (4 x pound6000)
per annum
48 There will be costs to Police Scotland in monitoring TEPOs and TEROs whether
imposed at the time of sentence or by application but this will sit alongside Police Scotlandrsquos
existing crime prevention and investigative responsibilities and is not expected to add to
manpower costs
49 In addition to the costs of imposing and monitoring TEPOs and TEROs there will be
costs associated with prosecuting a breach of a TEPO or TERO Analysis in England and Wales
indicates that breaches of equivalent Serious Crime Prevention Orders are relatively low
Assuming one breach per annum the total combined costs to the COPFS the SCS and SLAB
would be between pound8400 and pound78100 per annum (see the combined costs for either sheriff
court or High Court procedures set out in Table 3 above) Assuming a maximum sentence of
five years the costs to the SPS for additional prison places would be between pound85000 and
pound127500 per annum (ie the pound42500 average costs of a prison place times either two or three
places depending on whether offenders are released early at the halfway or two-thirds point of
their sentence)
50 It is important to remember however that the purpose of TEPOs and TEROs is to
prevent further trafficking and exploitation offences occurring A TEPO or TERO will only be
imposed where a court considers that there is a credible risk of an individual committing such a
crime Any costs associated with the imposition and breach of TEPOs and TEROs needs to be
offset against the potential costs of prosecutions If each TEPO or TERO prevents the costs of a
conviction for an offence as set out in Part 1 above the costs to the Scottish Administration
would be at least cost neutral in terms of saved court and prison places expenditure
34
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
Costs on other bodies individuals and businesses
51 There will be no costs on other bodies businesses or other individuals as a consequence
of these sections
Costs on local authorities
52 There will be no new costs on local authorities as a consequence of these sections
PART 5 - STRATEGY AND REPORTING
Ensure a strategic cross-agency approach to tackling trafficking
53 The Bill places a duty on the Scottish Ministers to prepare publish and regularly review
and update a trafficking and exploitation strategy to assist in ensuring a co-ordinated and
strategic approach to this issue The provisions place a duty on Ministers to consult with such
organisations and individuals as they consider to have a relevant interest in the issues of human
trafficking and exploitation The Bill places a duty on relevant public bodies to be named in
regulations to assist in the preparation and review of the strategy
54 The Bill will place a duty on relevant public authorities to provide anonymised data about
potential human trafficking and exploitation victims to Police Scotland
Costs on the Scottish Administration
55 Activity arising from these provisions within the Bill will build on the activity and
current resources already committed to this area of work
56 Based on similar activities the estimated additional costs to the Scottish Ministers of
preparing and reviewing a trafficking and exploitation strategy will be approximately pound25000
every three years Alongside the preparation and publication of the strategy the Scottish
Ministers would also propose to support additional awareness raising and training activity to
build on the existing awareness raising and training activity already undertaken by relevant
organisations including the NHS Police Scotland and COPFS Consideration would be given to
how best to co-ordinate these resources alongside existing expenditure and activity For the
purposes of the Financial Memorandum and based on current activity additional costs on top of
existing activity are estimated at approximately pound100000 to pound250000 per annum over the first
four years of the Bill This is based on the best estimated costs of preparing and publishing
publicity and guidance material averaged over a number of years The exact costs will depend
on decisions taken in dialogue with stakeholders as part of the preparation of the strategy
57 The Scottish Government anticipates that the costs to relevant public authorities of
providing anonymised data about potential human trafficking victims to Police Scotland will be
marginal Costs to Police Scotland of collating this data will form part of their existing
intelligence gathering activity
35
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
Costs on other bodies individuals and businesses
58 There will be some costs on other bodies individuals and businesses in engaging with the
Scottish Ministers in the preparation and publication of the Strategy For business and
individuals this will be voluntary depending on their willingness to engage For public bodies
their level of engagement will depend on the relevance of the issue of trafficking and
exploitation to their work and their potential contribution to combating this behaviour Any
additional costs are expected to fit within or sit alongside their existing responsibilities for
example with reference to promoting and ensuring equalities and the application of human
rights obligations
Costs on local authorities
59 There will be costs on local authorities associated with engaging in the preparation and
review of the trafficking and exploitation strategy and in awareness raising and training of front-
line staff The additional costs should be marginal on top of the existing guidance and activity
already in place with reference to the identification and support of potential child victims of
trafficking The aim will be to minimise costs for other front-line local authority staff by
adapting the general awareness raising and training materials described above
SUMMARY
60 The table below provides a summary of the costs of each element of the Bill as described
above
Table 7 Summary table of costs for each aspect of the Bill (pound000)
Year 1 Year 2 Year 3 Year 4
Clarifying amp
Strengthening the
Criminal Law ndash Para 28 pound20-pound353 pound190- pound693 pound360-pound900 pound360-pound1073
Ensure the rights of
victims to access and
support - Para 36 pound70-pound140 pound140-pound280 pound220-pound430 pound290-pound580
Introduce new measures to
disrupt and prevent
trafficking pound016
pound0 pound0 pound0
Ensure a strategic cross
agency approach to
tackling trafficking ndash Para
56 pound125-pound275 pound100-pound250 pound100-pound250 pound125-pound275
TOTAL pound215-pound768 pound430-pound1223 pound680-pound1580 pound775-pound1928
16
The Scottish Government considers that the overall costs are at least cost neutral ndash see paragraphs 45 to 50
36
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December
SCOTTISH GOVERNMENT STATEMENT ON LEGISLATIVE
COMPETENCE
On 11 December 2014 the Cabinet Secretary for Justice (Michael Matheson MSP) made the
following statement
―In my view the provisions of the Human Trafficking and Exploitation (Scotland) Bill
would be within the legislative competence of the Scottish Parliament
mdashmdashmdashmdashmdashmdashmdashmdashmdashmdash
PRESIDING OFFICERrsquoS STATEMENT ON LEGISLATIVE
COMPETENCE
On 11 December 2014 the Presiding Officer (Rt Hon Tricia Marwick MSP) made the following
statement
―In my view the provisions of the Human Trafficking and Exploitation (Scotland) Bill
would be within the legislative competence of the Scottish Parliament
37
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December
SP Bill 57ndashEN Session 4 (2014)
HUMAN TRAFFICKING AND EXPLOITATION
(SCOTLAND) BILL
EXPLANATORY NOTES
(AND OTHER ACCOMPANYING DOCUMENTS)
Parliamentary copyright Scottish Parliamentary Corporate Body
Information on the Scottish Parliamentrsquos copyright policy can be found on the website -
wwwscottishparliamentuk
Produced and published in Scotland on behalf of the Scottish Parliamentary Corporate Body by APS
Group Scotland
ISBN 978-1-78534-569-2
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
was a director secretary or manager of a company which was in possession of it
under a hire purchase agreement
in relation to a vehicle was driving it
in relation to a ship or aircraft was the charterer of it or was acting as captain of it
57 Subsection (4) makes special provision about cases where a ship or aircraft is to be
forfeited but the offender does not own it and was not a director secretary or manager of a
company which owns it It provides that in those circumstances forfeiture of a ship or aircraft
may only be ordered if any one of the tests listed in this subsection is satisfied Subsection (4)(a)
provides that if a person who at the time the offence was committed owned the ship or aircraft
or was a director secretary or manager of a company which owned it knew or ought to have
known of the intention to use it in the course of the commission of the offence of human
trafficking then forfeiture of a ship or aircraft may be ordered Subsection (4)(b) provides that
in the case of a ship (other than a hovercraft) if its gross tonnage is less than 500 then forfeiture
of that ship may be ordered Subsection (4)(c) provides that in the case of an aircraft if the
maximum weight at which it may take off in accordance with its certificate of airworthiness is
less than 5700 kilogrammes then forfeiture of that aircraft may be ordered under this section
Protection is provided for particular categories of owner who due to the size of the ship or
aircraft in question or the circumstances in which it is used for trafficking do not know or
reasonably suspect or are unlikely to know or reasonably suspect that the ship or aircraft is
being used in that way There is a greater likelihood that an owner of a vehicle or smaller types
of ships or aircraft will have actual or constructive knowledge that their property is being or
intended to be used for the purposes of trafficking
58 Subsection (5) provides that forfeiture cannot be ordered without giving any person
claiming an interest in the relevant property the chance to make representations
Proceeds of crime
Section 11 Proceeds of Crime Act 2002 lifestyle offences
59 Section 11 amends Schedule 4 to the Proceeds of Crime Act 2002 (―2002 Act) to
categorise all trafficking and exploitation offences as lifestyle offences for the purposes of that
Act A conviction of a lifestyle offence triggers assumptions under the 2002 Act that the accused
has a criminal lifestyle and that the accusedrsquos property is recoverable as criminal proceeds
60 Section 11(a) amends Schedule 4 to the 2002 Act by substituting paragraph 4 thereof
with a list of all offences related to trafficking and thus categorising all such offences as lifestyle
offences for the purposes of the 2002 Act Section 11(b) amends the same Schedule by inserting
a new paragraph 4A to provide that an offence under section 4 of the Bill also constitutes a
lifestyle offence
11
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
PART 4 ndash TRAFFICKING AND EXPLOITATION PREVENTION AND RISK ORDERS
Trafficking and exploitation offences
Section 12 Relevant trafficking or exploitation offences
61 Section 12 provides a list of the relevant trafficking and exploitation offences for the
purposes of trafficking and exploitation prevention and risk orders made under the Act The list
includes repealed provisions as orders (other than orders on sentencing) may still be made with
reference to convictions under such provisions
62 Subsection (2) provides that the Scottish Ministers may modify by regulations the
offences contained in the list Under section 37(2) any such regulations are subject to the
affirmative procedure
Trafficking and exploitation prevention orders
Section 13 Prevention orders on sentencing
63 Section 13 provides that a court may instead of or in addition to dealing with the person
in any other way make a trafficking and exploitation prevention order (TEPO) on sentencing of
an adult
64 Subsection (1) sets out the three circumstances where the court may make a TEPO
against a person on sentencing The first is conviction of an adult of a relevant trafficking and
exploitation offence The second circumstance is acquittal of such an offence by reason of the
special defence set out in section 51A of the Criminal Procedure (Scotland) Act 1995 (which
provides a defence where a person is unable by reason of mental disorder to appreciate the nature
or wrongfulness of their conduct) The third circumstance is a finding of unfitness for trial in
relation to such an offence under section 53F of that Act (which provides that a person is unfit
for trial if it is established on the balance of probabilities that the person is incapable by reason
of a mental or physical condition of participating effectively in that trial) In relation to the third
circumstance there must also be a finding that the adult has done the act constituting the offence
65 Subsection (3) provides that the court may make a TEPO at its own instance or on the
motion of the prosecutor
66 Subsection (4) provides the test for making a TEPO on sentencing The court must be
satisfied that there is a risk that the person in respect of whom the order is to have effect may
commit another offence mentioned in section 12 and that it is necessary to make the prohibitions
and requirements in the order for the purpose of protecting persons generally or particular
persons from the physical or psychological harm which would be likely to occur if the person
committed such an offence
67 Subsection (5) provides a definition of ―the court for the purposes of this section
12
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
Section 14 Prevention orders on application
68 Section 14 provides that the chief constable may apply to a sheriff for a TEPO against an
adult
69 Subsection (2) sets out the appropriate sheriff to whom such an application should be
made
70 Subsection (3) sets out the tests for making a TEPO on application The sheriff must be
satisfied that the person in respect of whom the order is sought is a ―relevant offender
(subsection (3)(a)) that since the person first became a relevant offender the person has acted in
a way which means that there is a risk the person will commit a relevant trafficking or
exploitation offence (subsection (3)(b)) and it is necessary to make the prohibitions or
requirements in the order for the purpose of protecting persons generally or particular persons
from the physical or psychological harm which would be likely to occur if the person committed
such an offence (subsection (3)(c))
71 Subsection (4) provides that conduct which occurred before this section came into force
may be considered when determining whether there is a risk that a person may commit a relevant
trafficking offence
Section 15 Meaning of relevant offender
72 Section 15 defines what is meant by a ―relevant offender for the purposes of section 14
73 Subsection (2) provides that a person is a relevant offender if any of the court disposals
listed in the subsection have been made in the UK in relation to that person and in respect of a
relevant trafficking or exploitation offence (as set out in section 12 of the Bill)
74 Subsections (3) to (5) deal with findings of courts and tribunals outside the United
Kingdom Subsection (3) provides that a person is a relevant offender if under the law of a
country outside the United Kingdom a listed disposal is made in respect of a person in relation
to an offence which is equivalent to an offence listed in section 12 Subsections (4) and (5) set
out tests for determining whether an offence is equivalent to a relevant offence In particular
such offences are acts which constitute offences under the law of the country concerned and
which would constitute a relevant trafficking or exploitation offence under the law of Scotland if
done in the UK by a UK national or person habitually resident in Scotland or as regards the UK
(eg by virtue of the fact that travel was arranged into out of or within the UK)
75 Subsection (6) establishes a mechanism for determining whether an act constituting an
offence in a country outside the UK would constitute an offence under the law of Scotland
76 Subsection (8) provides that for the purposes of this section convictions acquittals
findings and cautions include those which took place before this section comes into force
13
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
Section 16 Contents of prevention orders
77 Section 16 makes provision about the prohibitions or requirements (or both) that may be
contained in a TEPO Each prohibition and requirement in a TEPO is for a fixed period and the
order itself is for a fixed period The order and the prohibitions and requirements may all be for
the same period However the Bill allows some requirements and prohibitions in the order to be
set for a period shorter than that of the order if that is appropriate
78 Subsection (2) provides that both the order and any prohibition or requirement in the
order must have a specified fixed period of at least five years The only exception to that
requirement relates to a prohibition on foreign travel and an order containing only a prohibition
on foreign travel (which is dealt with in section 17) and relates to a period of not more than five
years Subsection (4) provides that a TEPO may prohibit the person in respect of whom the
order is made from doing things or require that person to do things Different prohibitions and
requirements may have effect for different periods
79 Subsection (5) provides that if the court makes a TEPO in respect of a person already
subject to such an order the earlier order will cease to have effect
80 Subsection (6) defines what is meant by ―the court for the purposes of the section
Section 17 Prohibitions on foreign travel
81 Section 17 makes provision about prohibitions on foreign travel in TEPOs
82 Subsection (1) provides that a prohibition on foreign travel contained in a TEPO and
any TEPO which contains such a prohibition and no other prohibitions or requirements must be
for a fixed period of not more than five years
83 Subsection (2) defines a prohibition on foreign travel as a prohibition on travelling to
countries outside the UK (either by reference to particular countries or generally)
84 Subsection (3)(a) determines that a prohibition on foreign travel varied or renewed by
application under section 18 or 19 may be varied or renewed for further fixed periods of no more
than five years each time Subsection (3)(b) requires that an order containing only a foreign
travel restriction may be renewed for up to that fixed period
85 Subsection (4) sets out the requirement on a person in respect of whom a TEPO
containing a prohibition on foreign travel to all countries outwith the United Kingdom has been
made to surrender at a police station each passport that the person has
86 Subsection (5) provides that any passport surrendered must be returned as soon as is
reasonably practicable after the person ceases to be subject to such a prohibition on foreign
travel Circumstances where this subsection would not apply are provided for at subsection (6)
for example where a passport has already been returned to the relevant authority
14
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
Section 18 Orders on sentencing variation renewal and discharge
87 Section 18 makes provision about varying renewing and discharging TEPOs made on
sentencing
88 Subsections (2) to (4) set out general powers in this context The person in respect of
whom the TEPO is made or the prosecutor may apply for variation renewal or discharge of such
a TEPO That application is to be made to the High Court where that court made the order and
to the sheriff otherwise Subsection (4)(b) makes provision about shrieval jurisdiction in this
connection Where the relevant court receives such an application it may vary renew or
discharge individual prohibitions or requirements or add new prohibitions or requirements it
may renew the whole order or it may discharge the whole order
89 Subsection (5) provides that the court must before making an order under this section
give an opportunity to make representations to the person in respect of whom the order is made
the prosecutor and the chief constable Subsection (6) provides that after taking into account
any such representations the court may then make such order as it thinks appropriate
90 Subsection (7) sets out the tests the court must consider when deciding whether to vary
renew or discharge TEPOs made on sentencing (including by adding new prohibitions or
requirements) or any prohibitions or requirements within them Subsection (7)(a) applies the
tests for the making of a TEPO to any variation (including an increase or a relaxation of a
requirement or prohibition) renewal or addition Subsection (7)(b) applies those tests to any
discharge of a prohibition or requirement or of an order
91 Subsection (8) makes it clear that an order varying or renewing a TEPO is subject to the
requirements and prohibitions established by sections 16 and 17 in the same way as the original
order
92 Subsection (9) defines ―prosecutor for the purposes of this section
Section 19 Orders on application variation renewal and discharge
93 Section 19 makes provision about the variation renewal or discharge of TEPOs made on
application
94 Subsections (2) to (4) set out general powers in this context The person in respect of
whom the TEPO is made or the chief constable may apply to the sheriff for variation renewal or
discharge of a TEPO made on application Subsection (4)(b) makes provision about shrieval
jurisdiction in this connection Where the sheriff receives such an application the sheriff may
vary renew or discharge individual prohibitions or requirements or add new prohibitions or
requirements renew the order so that the period of the order itself is extended or discharge the
whole order
95 Subsection (5) provides that the sheriff must before making an order under this section
give an opportunity to make representations to the person in respect of whom the order is made
15
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
and the chief constable Subsection (6) provides that after taking into account any such
representations the sheriff may then make such an order as the sheriff thinks appropriate
96 Subsection (7) sets out the tests the sheriff must consider when deciding whether to vary
renew or discharge TEPOs on application (including by adding new prohibitions or
requirements) or any prohibitions or requirements within them Those tests reflect the tests for
the making of a TEPO
97 Subsection (8) provides that when determining an application under this section the
sheriff may consider conduct which occurred before this section comes into force
98 Subsection (9) makes it clear that an order varying or renewing a TEPO is subject to the
requirements and prohibitions established by sections 16 and 17 in the same way as the original
order
Section 20 Interim prevention orders
99 Section 20 gives power to a sheriff to make an interim TEPO while the main application
under section 14 is being determined The sheriff may make such an order if the sheriff
considers it just to do so (subsection (1)) and such an order may contain prohibitions or
requirements (or both) in relation to the person in respect of whom the order is to have effect
(subsection (2)) Those prohibitions or requirements may relate to things to be done or not done
in any part of Scotland or anywhere outwith Scotland (subsection (3))
100 Subsection (4) provides that an interim TEPO will only have effect for a fixed period
specified in the order and will cease to have effect on the determination of an application for a
TEPO under section 14 if that fixed period has not expired
101 Subsection (5) allows for an application to a sheriff in the sheriffdom of the sheriff who
made the interim TEPO for variation or discharge of that order Such an application may be
made by the person in respect of whom the order was made or the chief constable
Section 21 Appeals prevention orders
102 Section 21 provides for an appeals process in relation to TEPOs and interim TEPOs
103 Subsection (1) makes provision about TEPOs made on sentencing and any variation or
renewal of such a TEPO These are to be treated as sentences for the purposes of any appeal
104 Subsections (2) (3) and (4) make provision about appeals in relation to TEPOs made on
application any variation or renewal of such a TEPO and interim TEPOs The person in respect
of whom the order was made or the chief constable may appeal against any of these orders
16
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
Trafficking and exploitation risk orders
Section 22 Risk orders
105 Section 22 provides that the chief constable may apply to a sheriff for a trafficking and
exploitation risk order (TERO) against an adult A TERO differs from a TEPO in that it may be
made where a person has not previously been convicted of a trafficking or exploitation offence
but the personrsquos behaviour indicates a risk that others may be at harm as a result of that person
committing such an offence and intervention at an early stage is necessary to prevent that harm
A TEPO can only be made where a relevant offence has already been committed
106 Subsection (2) sets out the appropriate sheriff to whom an application for such an order
may be made
107 Subsection (3) sets out the tests for making a TERO The sheriff may only make an order
if satisfied that the person in respect of whom the order is sought has acted in a way which
means that there is a risk the person may commit a relevant trafficking or exploitation offence
(subsection (3)(a)) and it is necessary to make the prohibitions or requirements in the order for
the purpose of protecting persons generally or particular persons from the physical or
psychological harm which would be likely to occur if the person committed such an offence
(subsection (3)(b))
108 Subsection (4) provides that in assessing those tests the sheriff may consider conduct
which occurred before this section comes into force
Section 23 Contents of risk orders
109 Section 23 makes provision about the prohibitions or requirements (or both) that may be
contained in a TERO Each prohibition and requirement in a TERO is for a fixed period and the
order itself is for a fixed period The orders and the prohibitions or requirements may all be for
the same period However the Bill allows some requirements and prohibitions in the order to be
set for a shorter period if that is appropriate
110 Subsection (2) provides that both the order and any prohibition or requirement in the
order must have a specified fixed period of at least two years However this does not apply to a
prohibition on foreign travel or to an order that contains a prohibition on foreign travel and no
other prohibitions or requirements Such a prohibition (or an order containing only such a
prohibition) must be for a fixed period of no more than five years under section 24(1))
111 Subsection (4) provides that a TERO may prohibit the person in respect of whom the
order is made from doing things or require that person to do things Different prohibitions and
requirements may have effect for different periods
112 Subsection (5) provides that if the sheriff makes a TERO in relation to a person already
subject to such an order the earlier order will cease to have effect
17
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
Section 24 Prohibitions on foreign travel
113 Section 24 makes provision about prohibitions on foreign travel contained in a TERO
114 As noted above subsection (1) provides that a prohibition on foreign travel contained in a
TERO and any TERO which contains such a prohibition and no other prohibitions or
requirements must be for a fixed period of not more than five years
115 Subsection (2) defines a ―prohibition on foreign travel as a prohibition on travelling to
countries outwith the UK (either by reference to particular countries or generally)
116 Subsection (3)(a) determines that a prohibition on foreign travel varied or renewed under
section 25 may be varied or renewed for further fixed periods of no more than five years each
time Subsection (3)(b) requires that an order containing only a foreign travel restriction may be
renewed for up to that fixed period
117 Subsection (4) sets out the requirement on a person in respect of whom a TERO has been
made containing a prohibition on foreign travel to all countries outwith the United Kingdom to
surrender at a police station each passport that the person has Subsection (5) provides that any
passport surrendered must be returned as soon as is reasonably practicable after the person
ceases to be subject to a prohibition on foreign travel to all countries outwith the United
Kingdom Circumstances where this subsection would not apply are provided for at subsection
(6) for example where a passport has already been returned to the relevant authority
Section 25 Variation renewal and discharge of risk orders
118 Section 25 makes provision about the variation renewal or discharge of TEROs
119 Subsections (1) to (3) set out general powers in this context The person in respect of
whom the TERO is made or the chief constable may apply to the sheriff for variation renewal or
discharge of a TERO Subsection (3) makes provision about shrieval jurisdiction in this
connection Where the sheriff receives such an application the sheriff may vary renew or
discharge individual prohibitions or requirements or add new prohibitions or requirements
renew the whole order or discharge the whole order
120 Subsection (4) provides that the sheriff must before making an order under this section
give an opportunity to make representations to the person in respect of whom the order is made
and the chief constable Subsection (5) provides that after taking into account any such
representations the sheriff may then make any order the sheriff considers appropriate
121 Subsection (6) sets out the tests the sheriff must consider when deciding whether to vary
renew or discharge TEROs (including by adding new prohibitions or requirements) or any
prohibitions or requirements within them Subsection (6)(a) applies the tests for the making of a
TERO to any variation (including an increase or a relaxation of a requirement or prohibition)
renewal or addition Subsection (6)(b) applies those tests to any discharge of a prohibition or
requirement or of an order
18
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
Section 26 Interim risk orders
122 Section 26 provides that a sheriff may make an interim TERO while the main application
under section 22 is being determined The sheriff may make such an order if the sheriff
considers it just to do so (subsection (1)) and such an order may contain prohibitions or
requirements (or both) in relation to the person in respect of whom the order is to have effect
(subsection (2)) Those prohibitions or requirements may relate to things to be done or not done
in any part of Scotland or anywhere outwith Scotland (subsection (3))
123 Subsection (4) provides that an interim TERO will only have effect for a fixed period
specified in the order and will cease to have effect on the determination of the main application
if that fixed period has not already expired
124 Subsection (5) allows for an application for variation or discharge of an interim TERO
(or a requirement or prohibition in the order) to be made to a sheriff in the sheriffdom of the
sheriff who made the interim order by the person in respect of whom the order was made or the
chief constable (subsection (6))
Section 27 Appeals risk orders
125 Section 27 provides for an appeals process in relation to TEROs and interim TEROs and
any order varying or renewing such a TERO or interim TERO The person in respect of whom
the order was made or the chief constable may appeal against any of these orders
Offences and supplementary provision
Section 28 Offences
126 Section 28 makes provision about breach of TEPOs and TEROs
127 Subsections (1) and (2) provide that a person commits an offence if that person does
anything which the person is prohibited from doing by an order or fails to do anything which the
person is required to do by a TEPO or a TERO or an interim TEPO or TERO
128 Subsection (3) makes provision about penalties in relation to these offences A person
who commits an offence under this section is liable on summary conviction to imprisonment for
a term not exceeding 12 months or a fine not exceeding the statutory minimum (or both) On
conviction on indictment that person is liable to imprisonment for a term not exceeding five
years or a fine (or both)
Section 29 Enforcement of other UK orders
129 Section 29 provides that the Scottish Ministers may modify by regulations the list of
orders at section 28(2) so that a breach of those orders in Scotland constitutes an offence under
section 28(1) The orders which may be added are ―relevant UK orders Those are described in
subsection (2) as orders under the law of England and Wales or Northern Ireland which appear to
the Scottish Ministers to be equivalent or similar to TEPOs TEROs or interim TEPOs or
TEROs
19
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
Section 30 Interpretation of Part 4
130 Section 30 defines certain terms used in Part 4
PART 5 - STRATEGY AND REPORTING
Section 31 Trafficking and exploitation strategy
131 Section 31 places a duty on the Scottish Ministers to prepare a trafficking and
exploitation strategy The strategy under this section is a strategy which sets out such actions
arrangements and outcomes as the Scottish Ministers consider appropriate in relation to the
conduct which constitutes an offence under this Act
132 Subsection (3) lists some of the matters which may be set out in the strategy though that
list is not exhaustive Those matters include for example training and awareness raising in
relation to the detection and prevention of the conduct which constitutes an offence of human
trafficking or an offence under section 4
Section 32 Review and publication of strategy
133 Subsection (1) of section 32 provides that the strategy prepared under section 31 must be
reviewed by the Scottish Ministers every three years Following a review the Scottish Ministers
are required by subsection (2) to prepare a report on the review including an assessment of the
extent to which the strategy has been complied with and may prepare a revised strategy If a
decision is taken following such a review not to prepare a revised strategy the Scottish Ministers
must set out their reasons for that decision
134 Subsection (4) places a duty on the Scottish Ministers to consult with those likely to have
an interest in the strategy before preparing or reviewing the strategy Those likely to have an
interest include but are not limited to businesses support agencies faith based groups etc
135 Subsection (5) requires the Scottish Ministers to publish and lay before the Scottish
Parliament each strategy and report prepared under this section
Section 33 Duty to co-operate on strategy
136 Section 33 provides that Scottish public authorities as specified in regulations that may
be made by the Scottish Ministers must provide such information and assistance as the Scottish
Ministers may reasonably require and otherwise co-operate with the Scottish Ministers in the
preparation or review of the strategy A specified public authority could include for example
Police Scotland and local authorities
Section 34 Duty to notify and provide information about victims
137 Section 34 places a duty on specified Scottish public authorities to notify the chief
constable of the Police Service of Scotland about a person who is or appears to be a victim of
20
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
an offence under section 1 or section 4 This duty would not affect any other general right to
report information relating to crime
138 Subsection (2) requires that a notification relating to an adult is anonymised and does not
include any information that identifies the adult or enables the adult to be identified unless the
adult consents to that data being provided
139 Subsection (3) provides that the Scottish Ministers may by regulations specify the
Scottish public authorities who are to be subject to this duty and may make provision about the
information to be included in the notification The regulations will be subject to the negative
procedure
PART 6 ndash FINAL PROVISIONS
Section 35 Offences by bodies corporate etc
140 Section 35 provides that where an offence under the Bill was committed by a body
corporate or a Scottish partnership or other unincorporated association and it is proved that the
offence was committed with the consent or connivance of or was attributable to any neglect on
the part of a relevant individual or someone purporting to be acting in the capacity of a relevant
individual that individual as well as the body corporate partnership or unincorporated
association commits the offence and is liable to be proceeded against and punished accordingly
141 Subsection (2) defines what is meant by a ―relevant individual for the purpose of this
section
Section 36 Interpretation
142 Section 36 defines certain terms for the purposes of the Bill for example the definition
of ―travel
Section 37 Regulations
143 The Scottish Ministers are given various powers under this Bill to make regulations
Section 37 provides for the parliamentary procedure which is to be applicable in relation to each
of those powers
Section 38 Ancillary provision
144 Section 38 provides that the Scottish Ministers may make regulations containing such
incidental supplementary consequential transitional transitory or saving provision as they
consider necessary or expedient for the purposes of or in connection with the provisions of the
Bill
21
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
Section 39 Minor and consequential amendments
145 Section 39 introduces the schedule which makes minor amendments and amendments
consequential on the provisions of the Bill Given their replacement in Part 1 of the Bill the
schedule repeals the current offences in relation to human trafficking (section 22 of the 2003 Act
and section 4 of the 2004 Act) and slavery servitude and forced or compulsory labour (section
47 of the 2010 Act)
Section 40 Crown application
146 Section 40(1) provides that none of the provisions made by or under the Act are capable
of making the Crown criminally liable In accordance with subsection (2) enforcement of
offences against the Crown is to be done by the Scottish Ministers or any other public body or
office-holder with responsibility for enforcing the provision applying to the Court of Session for
a civil declarator of non-compliance This provision does not apply to persons in the public
service of the Crown
Section 41 Commencement
147 Section 41 provides that sections 36 37 38 40 41 and 42 of the Bill come into force on
the day after Royal Assent All other provisions are to come into force on a day appointed by
regulations made by the Scottish Ministers
22
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
FINANCIAL MEMORANDUM
INTRODUCTION
1 This document relates to the Human Trafficking and Exploitation (Scotland) Bill (―the
Bill) introduced in the Scottish Parliament on 11 December 2014 It has been prepared by the
Scottish Government to satisfy Rule 932 of the Parliamentrsquos Standing Orders It does not form
part of the Bill and has not been endorsed by the Parliament
2 The purpose of the Bill is to consolidate and strengthen the existing criminal law against
human trafficking and exploitation and enhance the status and support provided to victims Bill
provisions are in the following Partsmdash
Part 1 (Offences) includes provision on the creation of a single offence of human trafficking
for all types of exploitation of both adults and children establishes statutory aggravators of
human trafficking for use with other crimes and reframes the current standalone offence of
slavery servitude and forced or compulsory labour
Part 2 (Protection of victims) includes provision on prosecutorial guidelines for the
prosecution of victims and provision about the support and assistance to which adult victims
are entitled
Part 3 (Confiscation of property) includes provision on detention and forfeiture of property
and proceeds of crime
Part 4 (Trafficking and exploitation prevention and risk orders) includes provision on
two new preventive orders the trafficking and exploitation prevention order and the
trafficking and exploitation risk order
Part 5 (Strategy and reporting) includes provision on the trafficking and exploitation
strategy and the duty on specified Scottish public authorities to notify and provide
information about victims
Part 6 contains general and ancillary provisions
3 This Financial Memorandum considers the financial implications of each of the elements
of the Bill where relevant
BACKGROUND
4 Before considering the financial implications associated with the specific provisions
within the Bill it is important to consider both the current estimated extent of human trafficking
in Scotland and existing activity by public bodies and others in response to this issue
23
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
Extent of human trafficking in Scotland
5 Human trafficking is by its nature a hidden crime The National Referral Mechanism
(NRM) is the process set up by the UK Government to identify and support victims of trafficking
in the UK The NRM is also the mechanism by which the UK Human Trafficking Centre
collects data about potential victims of trafficking Information about suspected child and adult
victims of human trafficking is referred by relevant ―first responder organisations such as the
police and third sector bodies for example Migrant Help and the Trafficking Awareness Raising
Alliance (TARA) Referrals relate to victims trafficked from outside and within the UK The
table below summarises the most recent available information on NRM referrals from first
responder organisations in Scotland
Table 1 Recent referrals from first responders in Scotland of potential child and adult
human trafficking victims to the National Referral Mechanism
2012 2013
Adults 67 77
Children 29 22
Total 96 99
of all UK Referrals 8 6
Source National Crime Agency National Referral Mechanism Statistics 2012 and 20131
6 Various reports confirm that the number of victims referred through the NRM is likely to
be a significant underestimate of the actual number of potential victims of trafficking For
example the Equality and Human Rights Commission Inquiry into Human Trafficking in
Scotland (2011) noted ―estimates of identified potential victims do not reflect what is likely to be
a much greater number of unidentified victims2
7 The UK National Crime Agency (NCA) Strategic Assessment of the Nature and Scale of
Human Trafficking in the UK3 aims to provide an indication of the nature and scale of human
trafficking beyond the number of referrals to the NRM The assessment is produced using
intelligence held by the NCA the NRM and intelligence information collected from agencies
such as Police Scotland the Home Office Gangmastersrsquo Licensing Authority and non-
government organisations The assessment removes information of potential victims referred to
the NRM who have received a negative ―reasonable grounds or ―conclusive decision (ie it
has been confirmed that they are not victims of trafficking) or duplicate information about
individuals (ie the same person has been referred more than once or by more than one agency)
to show a total number of ―unique potential victims of trafficking The NCA Assessment for
2013 indicated that there were significantly more unique potential victims of human trafficking
identified across the UK than the numbers referred to the NRM even excluding those that
received a negative decision and that the number of unique victims was increasing
1 httpwwwnationalcrimeagencygovukpublications399-nca-strategic-assessment-the-nature-and-scale-of-
human-trafficking-in-2013file 2httpwwwequalityhumanrightscomsitesdefaultfilesdocumentsScotlandHuman_Trafficking_in_Scotland_inq
uiry_into_human_trafficking_in_scotland-full-report_pdf_pdf 3 httpwwwnationalcrimeagencygovukpublications399-nca-strategic-assessment-the-nature-and-scale-of-
human-trafficking-in-2013file
24
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
Table 2 Comparison of recent UK referrals to the National Referral Mechanism and the
National Crime Agency Strategic Assessment of the Scale of Human Trafficking
2012 2013 Change
Referred to NRM 778 1095 +41
NCA Assessment No of
Unique Potential Victims
Identified
2255 2744 +22
Source National Crime Agency Strategic Assessment of the Nature and Scale of Human
Trafficking in the UK4
8 For Scotland the NCA Assessment for 2013 identified 55 unique potential victims of
human trafficking compared with 99 referrals to the NRM It is not known why in contrast to
the position in England and Wales the NCA Assessment for Scotland is lower than the NRM
referrals although it will exclude potential victims who received a negative conclusive decision
and duplicate referrals However these numbers must be treated with significant caution There
remains strong conviction amongst law enforcement bodies and victims organisations that there
are more victims of trafficking than are identified and that even once identified victims are
often unwilling to engage with authorities or identify themselves as having been trafficked For
the purpose of this Financial Memorandum the Scottish Government has accepted the NCA
assessment that there are likely to be between two and three times as many potential victims of
trafficking as are currently identified through the NRM This assessment is based on the Scottish
Governmentrsquos best understanding of the hidden nature of this crime and the known reluctance of
some victims to identify their trafficked status or to engage with public authorities
Criminal justice response to human trafficking and exploitation
9 There have been relatively few prosecutions and convictions for human trafficking
offences under existing criminal justice legislationmdash
The Criminal Justice (Scotland) Act 20035 (―the 2003 Act) provides for offences of
trafficking for the purposes of exploitation by way of prostitution
The Asylum and Immigration (Treatment of Claimants etc) Act 20046 (―the 2004
Act) provides for offences of trafficking for labour and other forms of exploitation
The Criminal Justice and Licensing (Scotland) Act 20107 (―the 2010 Act) amended
and extended the 2003 and 2004 Acts and created a standalone offence of holding
someone in slavery or servitude or requiring a person to perform forced or
compulsory labour
10 The first successful convictions for human trafficking in Scotland were in 2011 under
section 22 of the 2003 Act for trafficking for the purposes of prostitution During 2013 a total of
four people were convicted of human trafficking offences - one person under section 22 of the
2003 Act and three people under section 4 of the 2004 Act for trafficking for forced marriage
4 httpwwwnationalcrimeagencygovukpublications399-nca-strategic-assessment-the-nature-and-scale-of-
human-trafficking-in-2013file 5 httpwwwlegislationgovukasp20037
6 httpwwwlegislationgovukukpga200419
7 httpwwwlegislationgovukasp201013
25
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
The average custodial sentence length for those convicted of trafficking offences was 847 days
(just under two years and four months) as well as any confiscation order imposed
11 Although the number of convictions for trafficking offences has been small police and
the Crown Office and Procurator Fiscal Service (COPFS) have confirmed that even though it is
not possible to always prove the trafficking offence where a credible suspicion exists people
suspected of involvement with trafficking can and often are prosecuted and convicted for other
crimes such as crimes associated with prostitution forced marriage immigration offences and
drugs offences etc
12 Police Scotland has established a dedicated National Human Trafficking Unit to enhance
the police response to human trafficking through awareness raising intelligence gathering
training and providing divisions with advice and specialist knowledge The COPFS has
appointed dedicated expert fiscals to prosecute human trafficking offences
Support for victims of trafficking
13 The Scottish Government currently allocates direct grant funding to non-government
organisations to provide and facilitate immediate support and assistance to the adult victims of
human trafficking This support can include immediate safe accommodation psychological
support assistance in accessing medical treatment material assistance interpretation and
translation and assistance either with repatriation or securing longer-term access to mainstream
services and support such as welfare benefits and housing The provision of support and
assistance is not conditional on the potential victim being willing to participate in the criminal
justice process Under the NRM victims of trafficking are guaranteed ―a recovery and reflection
period to recover from their experience escape the influence of those alleged to have trafficked
or exploited them and consider whether to engage with authorities The Council of Europe
Convention on Action Against Trafficking in Human Beings8 provides for a reflection period of
at least 30 days for all trafficked victims when there are reasonable grounds to believe that the
person concerned is a victim The current minimum recovery and reflection period in Scotland
and the rest of the UK is 45 days
14 In 2013-14 total grant funding of pound723000 was provided by the Scottish Government
towards the costs of ensuring immediate support and assistance for the adult victims and
potential victims of trafficking in Scotland This funding was provided through two non-
government organisationsmdash
the TARA Service which works with women aged 18 years and over across
Scotland where there are concerns that they have been trafficked for commercial
sexual exploitation and
Migrant Help a UK-wide organisation providing support and advice services to
migrants including new asylum claimants refugees EU nationals etc
15 Support for the child victims of trafficking is co-ordinated by local authorities as part of
their child protection arrangements and in line with the policy intention that children remain
8 httpwwwcoeinttdghlmonitoringtraffickingdocsconvntnCETS197_enasp
26
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
children first and that their needs should be treated accordingly The Scottish Government has
produced a toolkit for agencies working with children and young people to ensure that staff are
able to identify trafficked children and make appropriate referrals so that victims can receive
protection and support The toolkit is designed to be used in conjunction with National Child
Protection Guidance9 which was first published in 2010 and refreshed in 2014 and other
relevant national and international guidance Information about current expenditure on child
victims of trafficking is not recorded separately from information about wider expenditure on
child protection services
Lord Advocate guidance on prosecution policy
16 In his letter of 21 January 2013 to the Scottish Parliament European and External
Relations Committee10
the Lord Advocate set out the current arrangements for fiscals
considering the prosecution of a confirmed or potential victim of human trafficking where it is
believed or claimed that the crime was committed as a direct consequence of the personrsquos
trafficked status The letter set out the basis for the current Lord Advocatersquos guidance to
prosecutors including the presumption against the prosecution of a credible trafficking victim
for crimes that arise as a consequence of the victimrsquos trafficked status
Human trafficking strategic approach awareness raising and training
17 The first Scottish Human Trafficking Summit was hosted by the Cabinet Secretary for
Justice in October 2012 The summit brought together key law enforcement public private and
third sector organisations with an interest in human trafficking Following the summit a number
of strategic collaborative actions were agreed and progressed including with reference to
awareness raising and training for frontline staff data collection and analysis identification care
and support for both child and adult victims of trafficking and enhancing enforcement
18 One specific workstream related to awareness raising and training of front-line staff
likely to come into contact with trafficking victims or potential instances of trafficking
Following the summit Police Scotland with support from the Scottish Government and others
prepared published and circulated widely an awareness raising leaflet ndash Reading the Signs11
ndash to
assist police officers and staff in other front line posts in identifying the signs of potential
trafficking The Scottish Government also participated with the UK Government in a UK-wide
public awareness raising campaign about modern slavery and trafficking
19 In addition to general awareness raising specific training material was prepared for key
front-line staff For example all police officers were required to undertake an e-learning course
on human trafficking A special leaflet for health workers was prepared and circulated by NHS
Health Scotland An e-learning module for health workers about their role in identifying and
9 httpwwwscotlandgovukPublications2014053052
10httpwwwscottishparliamentukS3_EuropeanandExternalRelationsCommitteeGeneral20DocumentsLetterfro
mTheLordAdvocatepdf 11
httpwwwscotlandpoliceukassetspdf174967human-traffickingview=Standard
27
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
responding to victims of trafficking was made available through the National Gender Based
Violence and Health Programme12
IMPACT OF SPECIFIC PROVISIONS
PART 1 - OFFENCES
Single trafficking offence
20 The Bill establishes a new single offence of human trafficking for all types of
exploitation for both adults and children replacing existing separate criminal offences (see
paragraph 9 above) As noted above to date there have been relatively small numbers of
prosecutions under existing trafficking offences
21 The maximum penalty for conviction on indictment for the single trafficking offence will
be life imprisonment compared with a maximum of 14 years for the current separate offences
Although it will be for the court to decide how to sentence people convicted under the new single
offence in any given case it is likely that the availability of a higher maximum sentence will
have cost implications for the Scottish Prison Service (SPS)
Revised slavery servitude and forced labour offence
22 The Bill will also repeal and replace the existing exploitation offence within section 47 of
the 2010 Act which criminalises holding someone in slavery or servitude or requiring them to
perform compulsory or forced labour The offence will be revised and strengthened to allow the
court to consider in assessing whether a person has been a victim of an offence the victimrsquos
characteristics such as age physical or mental illness disability or where relevant family
relationships The maximum penalty for the offence will be increased from 14 years for the
current offence to life imprisonment for a conviction on indictment
Statutory aggravators
23 The Bill makes provision for statutory aggravators which apply in cases where an
accused person commits an offence connected with human trafficking and for when the offence
is committed in connection with the accusedrsquos position as a public official The court must take
the aggravation into account in determining the appropriate sentence if it is proved that the
offence is aggravated in this way The statutory aggravator is not anticipated to have any
substantial financial implications for public private or third sector bodies or for individuals
Costs on the Scottish Administration
24 Consolidating and clarifying the existing criminal law on trafficking and exploitation
alongside other measures arising from the Bill and the trafficking and exploitation strategy
including training and awareness raising and support for victims should increase the potential
for successful investigations prosecutions and convictions of human trafficking and exploitation
offences There have been six successful prosecutions for a specific trafficking offence to date in
Scotland with an average custodial sentence length of two years and four months against a
12
httpwwwgbvscotnhsuk
28
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
maximum possible sentence of 14 years The maximum number of prosecutions in any one year
was four individuals in two separate cases
25 Police and prosecutors already have in place specialist resources for investigating and
prosecuting human trafficking and exploitation offences and these provisions will not add to
these costs Law enforcement agencies have confirmed that whilst the number of prosecutions
for specific trafficking offences has been low where victims are identified but are unwilling to
testify individuals suspected of trafficking and exploitation will be prosecuted in court for other
related offences The Lord Advocate has identified that ―If we donrsquot have the evidence [to
prosecute for a specific human trafficking offence] we prosecute for fraud ID theft or asylum
and immigration offences13
26 The Scottish Government does not anticipate therefore significant additional cost
implications for law enforcement agencies or courts as cases will often proceed with a
trafficking offence alongside or in place of other related offences For the same reason the
Scottish Government does not anticipate significant additional cost on the Scottish Legal Aid
Board (SLAB) However if it is assumed that the number of successful trials proceeding in any
single year doubles from two to four there would be some additional costs on the COPFS the
Scottish Court Service (SCS) and SLAB based on the average unit costs for cases proceeded
either through Sheriff Court Solemn procedure or through the High Court These estimated costs
depending on whether cases are proceeded through the High Court or Sheriff Court solemn
procedure are illustrated in the table below
Table 3 Estimated unit costs of additional trial procedures through either High Court or
Sheriff Court solemn procedure (pound000)
Average prosecution
costs per procedure
(COPFS)
Average court costs
per procedure (SCS)
Average legal aid
costs per procedure
(SLAB)
Sheriff Court solemn
procedure (pound000) pound49 pound19 pound16
High Court (pound000) pound556 pound90 pound135
Estimated average
costs of 2 additional
trial procedures 4
accused per annum
(pound000)
pound99-pound1112 pound38-pound180 pound64-pound540
Source costs of the Criminal Justice System in Scotland Dataset (2013)14
27 There will also be costs to the SPS both through any increase in the number of successful
convictions for trafficking and exploitation offences and an anticipated increase in the average
length of custodial sentence for these crimes It is not possible to know for certain the total
13
httpwwwdailyrecordcouknewsscottish-newsonly-three-successful-prosecutions-brought-4457684 14httpwwwscotlandgovukTopicsStatisticsBrowseCrimeJusticePublicationscostcrimjustsc
otcostcrimjustdatasethttpwwwscotlandgovukTopicsStatisticsBrowseCrimeJusticePublicationscostcrimj
ustscotcostcrimjustdataset
29
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
number of future convictions or what sentencing decisions might be taken by courts in individual
cases
28 The table below illustrates the potential cost implications of either maintaining or
increasing the current maximum number of convictions in any individual year from four to eight
convictions For the purpose of the calculation it is assumed that the average custodial sentence
length for trafficking and exploitation offences will increase from two years and four months
(classified as a short-term sentence) to over four years (classified as a long-term sentence) as
increasing the maximum sentence to life imprisonment is anticipated to increase the average
sentence for a trafficking offence The estimated average annual cost of a prison place based on
SPS figures is pound42500 Taking account of the current early release arrangements for long-term
prisoners and the overlapping of individual sentences would result in an estimated increase of 8
to 21 total prison places each year after four years ndash ie with an additional four people receiving
custodial sentences each year and released by the Parole Board at the halfway point of their
sentence or automatically at the two-thirds point The total costs to the SPS will be within a
range of pound340000 to pound890000 These costs will fit within the overall budget costs to the SPS
As at 17 October 2014 there were 7731 people in custody in Scotland An additional 21 places
accounts for 03 of the total prison population
Table 4 Estimated range of costs to the Scottish Prison Service from increasing the
number and average length of successful prosecutions for trafficking offences
Year 1 Year 2 Year 3 Year 4
Additional Prison places 0-4 4-12 8-17 8-21
Additional Cost (pound000) pound0-pound170 pound170- pound510 pound340-pound720 pound340-pound890
Table 5 Estimated range of combined costs for trial procedures and prison places
Year 1 Year 2 Year 3 Year 4
Additional Cost (pound000) pound20-pound353 pound190- pound693 pound360-pound900 pound360-pound1073
Costs on other bodies individuals and businesses
29 There will be no new costs falling on other bodies individuals and businesses as a
consequence of these sections but see the section below with reference to victim support
Costs on local authorities
30 There will be no new costs falling on local authorities as a consequence of these specific
sections
PART 2 - PROTECTION OF VICTIMS
Duty on the Lord Advocate to publish guidance about the prosecution of credible trafficking and
exploitation victims who have committed offences
Costs on the Scottish Administration
31 As noted above the Lord Advocate already prepares and publishes guidance to fiscals
about the prosecution of credible victims of human trafficking for crimes committed as a direct
30
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
consequence of their trafficking status The requirement to publish such guidance would in
future be statutory However there will be no new costs on the Scottish Government or the
COPFS as a consequence of placing the requirement for the Lord Advocate to issue this
guidance on a statutory basis
Costs on other bodies individuals and businesses
32 There will be no new costs falling on other bodies individuals and businesses as a
consequence of these sections
Costs on local authorities
33 There will be no new costs falling on local authorities as a consequence of these sections
Ensure the rights of victims to access and support
34 The Bill will place a statutory duty on the Scottish Ministers to secure the provision of
relevant immediate support and recovery services for adult victims of trafficking subject to an
assessment of need The Bill will specify those victims or potential victims entitled to support
and the minimum time periods during which such services should be provided Specifically the
Bill will require Ministers to provide support and assistance based on each individualrsquos assessed
needs during the recovery and reflection period (currently 45 days) during which the
individualrsquos trafficking status is determined The Bill specifies minimum support and assistance
that should be considered as part of the assessment including access to housing treatment
interpretation services etc The Scottish Ministers have the flexibility to provide support and
assistance outwith the specified reflection and recovery period where this is considered
appropriate
35 As noted above the Scottish Ministers already provide grant funding totalling pound723000
to third sector organisations to assist identified adult potential victims of trafficking Provision of
support to adult victims will be placed on a statutory basis The number of adult potential victims
of trafficking referred through the NRM during 2013 was 77 although not all of these will have
requested assistance or received the full range of support services It is assumed that other
actions arising from the Bill including the single offence and publication of the trafficking and
exploitation strategy will result over time in an increase in identified victims and requests for
assistance and support
Costs on the Scottish Administration
36 The Scottish Government anticipates that improved awareness raising and training of
front-line staff will result in an increase in the number of victims identified over time It is not
possible to know how quickly this improvement will be achieved However between 2012 and
2013 the number of potential identified victims across the UK identified through the NCA
strategic assessment and NRM increased by 22 and 41 respectively Given the need for
awareness raising and training to impact the Scottish Government does not anticipate a similar
scale of increase in the immediate term but the Government considers it reasonable to anticipate
a possible increase of between 10 and 20 per annum in the overall number of requests for
assistance and support each year over the next four years Assuming a similar mix of needs as
31
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
current victims the increased costs to the Scottish Government on top of existing funding
would range between pound290000 to pound580000 per annum by year four
Table 6 Estimated range of costs increases for victim support and assistance (pound000)
Year 1 Year 2 Year 3 Year 4
Additional Cost (pound000) pound0-pound140 pound140-pound280 pound220-pound430 pound290-pound580
Costs on other bodies individuals and businesses
37 There will be no additional costs on other public bodies individuals or businesses
associated with these specific provisions There will be no direct additional costs falling on third
sector organisations as a consequence of the specific provisions It is likely however that all or
part of the additional funding identified above will be directed by the Scottish Government
through relevant third sector organisations with the expertise to provide immediate support and
protection to victims
Costs on local authorities
38 The Bill creates no new legislative requirements for the delivery of childrenrsquos services
recognising that this already exists It is therefore not anticipated that the Bill will result in any
quantifiable additional costs on local authorities or other public bodies as a result of support for
child victims Child victims of trafficking are supported as part of the Getting It Right for Every
Child (GIRFEC) approach any child whether identified as trafficked or not will be assessed on
the basis of its needs It is anticipated that as a consequence of the strategy (for which the Bill
provides) that more children may be identified as trafficked It is noted however that various
reports including most recently the UK Governmentrsquos NRM Review Report15
have found that
children who are already receiving support from relevant authorities in the UK are often not
identified as trafficked victims because of lack of awareness of the referral process It may be
that actions arising from the development of the strategy and dialogue with stakeholders will
give rise to additional activity or costs with reference to child victims of trafficking but these are
not known and cannot be estimated at this time
PART 3 - CONFISCATION OF PROPERTY
39 The Bill will provide police with powers to detain the property such as cars boats etc of
a person arrested for a trafficking offence This power will be exercised at the time of arrest and
is not expected to impose any additional costs on the police or others
Costs on the Scottish Administration
40 There will be no additional costs on the Scottish Government as a result of these
provisions Individuals can apply to the court to have vehicles ships or aircraft released from
detention This will be considered as part of the overall case and will not add to the costs to the
criminal justice system
15
httpsnrmhomeofficegovuk
32
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
Costs on other bodies individuals and businesses
41 There will be no additional costs on other public bodies individuals or businesses
including Police Scotland as a result of these specific provisions
Costs on local authorities
42 There will be no additional costs on local authorities as a result of these specific
provisions
PART 4 - TRAFFICKING AND EXPLOITATION PREVENTION AND RISK ORDERS
Introduce new measures to disrupt and prevent trafficking and exploitation
43 The Bill will introduce two new civil orders and associated interim orders to assist in
preventing trafficking and exploitation Trafficking and Exploitation Prevention Orders (TEPOs)
and Trafficking and Exploitation Risk Orders (TEROs) Where an individual has been convicted
of a trafficking or exploitation offence or an offence with a statutory trafficking aggravator a
TEPO may be imposed by a court where there is a risk that that individual may commit a further
human trafficking offence and it is necessary to make the order to protect people from the
physical or psychological harm which might occur if such an offence were committed The
TEPO will prevent the individual from engaging in activities described in the order Where a
person has not been convicted of a trafficking or exploitation offence but a court considers that
the person presents a significant risk of harm to others through the individual committing a
trafficking or exploitation offence the court can impose a TERO restricting specific activities or
imposing requirements These orders will be civil but breach of an order will constitute a
criminal offence with a maximum penalty of five years in prison available to the court
44 The Bill will categorise the trafficking and exploitation offences as lifestyle offences in
order to automatically trigger provisions within the Proceeds of Crime Act 2002 (―the 2002
Act) The definition of an offence as a ―lifestyle offence allows for proceedings under the
2002 Act to confiscate assets or monies from the individual convicted of the offence
Costs on the Scottish Administration
45 The purpose of TEPOs and TEROs is to prevent criminal activity associated with
trafficking and exploitation from arising There will be some cost implications for law
enforcement organisations which will need to monitor the terms of any order imposed by the
courts However these will be offset by the savings made from being able to intervene at an
early stage of criminality if an order has been breached For the equivalent civil orders within the
UK Modern Slavery Bill the UK Government has estimated potential net savings of between
pound130000 and pound1090000 per annum The Scottish Government has not incorporated any
savings for the purpose of Scottish legislation but expects the costs of implementing TEPOs and
TEROs and detention powers to be at least cost neutral for the Scottish Administration and other
public bodies
33
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
46 The Bill will give courts powers to impose a TEPO at the time of sentencing There will
be no immediate additional costs for the courts or COPFS associated with TEPOs imposed as
part of sentencing The Chief Constable of Police Scotland will also be able to apply to the court
for a TEPO to be imposed on a relevant offender previously convicted of a trafficking offence
There will be costs to Police Scotland in making the application and to the SCS and to SLAB in
considering the application As there have been only six previous convictions for trafficking
offences in Scotland the Scottish Government expects the number of applications for TEPOs for
previous convictions to be small one-off and will not add to the overall costs of the criminal
justice system The Chief Constable of Police Scotland can also apply to the court for a TERO
against an individual where it is considered that that individual is likely to commit a trafficking
offence
47 Looking at the equivalent costs for similar civil orders eg Sexual Offences Prevention
Orders the total costs to the SCS the COPFS and SLAB of applying for a TERO or post-
sentencing TEPO are estimated at between pound1000 and pound6000 per order It is not possible to
know how many TEPOs or TEROs might be applied for but assuming a number half the level of
the estimated maximum number of potential convictions for trafficking offences each year (four
to eight) would give estimated costs of between pound2000 (2 x pound1000) and pound24000 (4 x pound6000)
per annum
48 There will be costs to Police Scotland in monitoring TEPOs and TEROs whether
imposed at the time of sentence or by application but this will sit alongside Police Scotlandrsquos
existing crime prevention and investigative responsibilities and is not expected to add to
manpower costs
49 In addition to the costs of imposing and monitoring TEPOs and TEROs there will be
costs associated with prosecuting a breach of a TEPO or TERO Analysis in England and Wales
indicates that breaches of equivalent Serious Crime Prevention Orders are relatively low
Assuming one breach per annum the total combined costs to the COPFS the SCS and SLAB
would be between pound8400 and pound78100 per annum (see the combined costs for either sheriff
court or High Court procedures set out in Table 3 above) Assuming a maximum sentence of
five years the costs to the SPS for additional prison places would be between pound85000 and
pound127500 per annum (ie the pound42500 average costs of a prison place times either two or three
places depending on whether offenders are released early at the halfway or two-thirds point of
their sentence)
50 It is important to remember however that the purpose of TEPOs and TEROs is to
prevent further trafficking and exploitation offences occurring A TEPO or TERO will only be
imposed where a court considers that there is a credible risk of an individual committing such a
crime Any costs associated with the imposition and breach of TEPOs and TEROs needs to be
offset against the potential costs of prosecutions If each TEPO or TERO prevents the costs of a
conviction for an offence as set out in Part 1 above the costs to the Scottish Administration
would be at least cost neutral in terms of saved court and prison places expenditure
34
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
Costs on other bodies individuals and businesses
51 There will be no costs on other bodies businesses or other individuals as a consequence
of these sections
Costs on local authorities
52 There will be no new costs on local authorities as a consequence of these sections
PART 5 - STRATEGY AND REPORTING
Ensure a strategic cross-agency approach to tackling trafficking
53 The Bill places a duty on the Scottish Ministers to prepare publish and regularly review
and update a trafficking and exploitation strategy to assist in ensuring a co-ordinated and
strategic approach to this issue The provisions place a duty on Ministers to consult with such
organisations and individuals as they consider to have a relevant interest in the issues of human
trafficking and exploitation The Bill places a duty on relevant public bodies to be named in
regulations to assist in the preparation and review of the strategy
54 The Bill will place a duty on relevant public authorities to provide anonymised data about
potential human trafficking and exploitation victims to Police Scotland
Costs on the Scottish Administration
55 Activity arising from these provisions within the Bill will build on the activity and
current resources already committed to this area of work
56 Based on similar activities the estimated additional costs to the Scottish Ministers of
preparing and reviewing a trafficking and exploitation strategy will be approximately pound25000
every three years Alongside the preparation and publication of the strategy the Scottish
Ministers would also propose to support additional awareness raising and training activity to
build on the existing awareness raising and training activity already undertaken by relevant
organisations including the NHS Police Scotland and COPFS Consideration would be given to
how best to co-ordinate these resources alongside existing expenditure and activity For the
purposes of the Financial Memorandum and based on current activity additional costs on top of
existing activity are estimated at approximately pound100000 to pound250000 per annum over the first
four years of the Bill This is based on the best estimated costs of preparing and publishing
publicity and guidance material averaged over a number of years The exact costs will depend
on decisions taken in dialogue with stakeholders as part of the preparation of the strategy
57 The Scottish Government anticipates that the costs to relevant public authorities of
providing anonymised data about potential human trafficking victims to Police Scotland will be
marginal Costs to Police Scotland of collating this data will form part of their existing
intelligence gathering activity
35
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
Costs on other bodies individuals and businesses
58 There will be some costs on other bodies individuals and businesses in engaging with the
Scottish Ministers in the preparation and publication of the Strategy For business and
individuals this will be voluntary depending on their willingness to engage For public bodies
their level of engagement will depend on the relevance of the issue of trafficking and
exploitation to their work and their potential contribution to combating this behaviour Any
additional costs are expected to fit within or sit alongside their existing responsibilities for
example with reference to promoting and ensuring equalities and the application of human
rights obligations
Costs on local authorities
59 There will be costs on local authorities associated with engaging in the preparation and
review of the trafficking and exploitation strategy and in awareness raising and training of front-
line staff The additional costs should be marginal on top of the existing guidance and activity
already in place with reference to the identification and support of potential child victims of
trafficking The aim will be to minimise costs for other front-line local authority staff by
adapting the general awareness raising and training materials described above
SUMMARY
60 The table below provides a summary of the costs of each element of the Bill as described
above
Table 7 Summary table of costs for each aspect of the Bill (pound000)
Year 1 Year 2 Year 3 Year 4
Clarifying amp
Strengthening the
Criminal Law ndash Para 28 pound20-pound353 pound190- pound693 pound360-pound900 pound360-pound1073
Ensure the rights of
victims to access and
support - Para 36 pound70-pound140 pound140-pound280 pound220-pound430 pound290-pound580
Introduce new measures to
disrupt and prevent
trafficking pound016
pound0 pound0 pound0
Ensure a strategic cross
agency approach to
tackling trafficking ndash Para
56 pound125-pound275 pound100-pound250 pound100-pound250 pound125-pound275
TOTAL pound215-pound768 pound430-pound1223 pound680-pound1580 pound775-pound1928
16
The Scottish Government considers that the overall costs are at least cost neutral ndash see paragraphs 45 to 50
36
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December
SCOTTISH GOVERNMENT STATEMENT ON LEGISLATIVE
COMPETENCE
On 11 December 2014 the Cabinet Secretary for Justice (Michael Matheson MSP) made the
following statement
―In my view the provisions of the Human Trafficking and Exploitation (Scotland) Bill
would be within the legislative competence of the Scottish Parliament
mdashmdashmdashmdashmdashmdashmdashmdashmdashmdash
PRESIDING OFFICERrsquoS STATEMENT ON LEGISLATIVE
COMPETENCE
On 11 December 2014 the Presiding Officer (Rt Hon Tricia Marwick MSP) made the following
statement
―In my view the provisions of the Human Trafficking and Exploitation (Scotland) Bill
would be within the legislative competence of the Scottish Parliament
37
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December
SP Bill 57ndashEN Session 4 (2014)
HUMAN TRAFFICKING AND EXPLOITATION
(SCOTLAND) BILL
EXPLANATORY NOTES
(AND OTHER ACCOMPANYING DOCUMENTS)
Parliamentary copyright Scottish Parliamentary Corporate Body
Information on the Scottish Parliamentrsquos copyright policy can be found on the website -
wwwscottishparliamentuk
Produced and published in Scotland on behalf of the Scottish Parliamentary Corporate Body by APS
Group Scotland
ISBN 978-1-78534-569-2
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
PART 4 ndash TRAFFICKING AND EXPLOITATION PREVENTION AND RISK ORDERS
Trafficking and exploitation offences
Section 12 Relevant trafficking or exploitation offences
61 Section 12 provides a list of the relevant trafficking and exploitation offences for the
purposes of trafficking and exploitation prevention and risk orders made under the Act The list
includes repealed provisions as orders (other than orders on sentencing) may still be made with
reference to convictions under such provisions
62 Subsection (2) provides that the Scottish Ministers may modify by regulations the
offences contained in the list Under section 37(2) any such regulations are subject to the
affirmative procedure
Trafficking and exploitation prevention orders
Section 13 Prevention orders on sentencing
63 Section 13 provides that a court may instead of or in addition to dealing with the person
in any other way make a trafficking and exploitation prevention order (TEPO) on sentencing of
an adult
64 Subsection (1) sets out the three circumstances where the court may make a TEPO
against a person on sentencing The first is conviction of an adult of a relevant trafficking and
exploitation offence The second circumstance is acquittal of such an offence by reason of the
special defence set out in section 51A of the Criminal Procedure (Scotland) Act 1995 (which
provides a defence where a person is unable by reason of mental disorder to appreciate the nature
or wrongfulness of their conduct) The third circumstance is a finding of unfitness for trial in
relation to such an offence under section 53F of that Act (which provides that a person is unfit
for trial if it is established on the balance of probabilities that the person is incapable by reason
of a mental or physical condition of participating effectively in that trial) In relation to the third
circumstance there must also be a finding that the adult has done the act constituting the offence
65 Subsection (3) provides that the court may make a TEPO at its own instance or on the
motion of the prosecutor
66 Subsection (4) provides the test for making a TEPO on sentencing The court must be
satisfied that there is a risk that the person in respect of whom the order is to have effect may
commit another offence mentioned in section 12 and that it is necessary to make the prohibitions
and requirements in the order for the purpose of protecting persons generally or particular
persons from the physical or psychological harm which would be likely to occur if the person
committed such an offence
67 Subsection (5) provides a definition of ―the court for the purposes of this section
12
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
Section 14 Prevention orders on application
68 Section 14 provides that the chief constable may apply to a sheriff for a TEPO against an
adult
69 Subsection (2) sets out the appropriate sheriff to whom such an application should be
made
70 Subsection (3) sets out the tests for making a TEPO on application The sheriff must be
satisfied that the person in respect of whom the order is sought is a ―relevant offender
(subsection (3)(a)) that since the person first became a relevant offender the person has acted in
a way which means that there is a risk the person will commit a relevant trafficking or
exploitation offence (subsection (3)(b)) and it is necessary to make the prohibitions or
requirements in the order for the purpose of protecting persons generally or particular persons
from the physical or psychological harm which would be likely to occur if the person committed
such an offence (subsection (3)(c))
71 Subsection (4) provides that conduct which occurred before this section came into force
may be considered when determining whether there is a risk that a person may commit a relevant
trafficking offence
Section 15 Meaning of relevant offender
72 Section 15 defines what is meant by a ―relevant offender for the purposes of section 14
73 Subsection (2) provides that a person is a relevant offender if any of the court disposals
listed in the subsection have been made in the UK in relation to that person and in respect of a
relevant trafficking or exploitation offence (as set out in section 12 of the Bill)
74 Subsections (3) to (5) deal with findings of courts and tribunals outside the United
Kingdom Subsection (3) provides that a person is a relevant offender if under the law of a
country outside the United Kingdom a listed disposal is made in respect of a person in relation
to an offence which is equivalent to an offence listed in section 12 Subsections (4) and (5) set
out tests for determining whether an offence is equivalent to a relevant offence In particular
such offences are acts which constitute offences under the law of the country concerned and
which would constitute a relevant trafficking or exploitation offence under the law of Scotland if
done in the UK by a UK national or person habitually resident in Scotland or as regards the UK
(eg by virtue of the fact that travel was arranged into out of or within the UK)
75 Subsection (6) establishes a mechanism for determining whether an act constituting an
offence in a country outside the UK would constitute an offence under the law of Scotland
76 Subsection (8) provides that for the purposes of this section convictions acquittals
findings and cautions include those which took place before this section comes into force
13
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
Section 16 Contents of prevention orders
77 Section 16 makes provision about the prohibitions or requirements (or both) that may be
contained in a TEPO Each prohibition and requirement in a TEPO is for a fixed period and the
order itself is for a fixed period The order and the prohibitions and requirements may all be for
the same period However the Bill allows some requirements and prohibitions in the order to be
set for a period shorter than that of the order if that is appropriate
78 Subsection (2) provides that both the order and any prohibition or requirement in the
order must have a specified fixed period of at least five years The only exception to that
requirement relates to a prohibition on foreign travel and an order containing only a prohibition
on foreign travel (which is dealt with in section 17) and relates to a period of not more than five
years Subsection (4) provides that a TEPO may prohibit the person in respect of whom the
order is made from doing things or require that person to do things Different prohibitions and
requirements may have effect for different periods
79 Subsection (5) provides that if the court makes a TEPO in respect of a person already
subject to such an order the earlier order will cease to have effect
80 Subsection (6) defines what is meant by ―the court for the purposes of the section
Section 17 Prohibitions on foreign travel
81 Section 17 makes provision about prohibitions on foreign travel in TEPOs
82 Subsection (1) provides that a prohibition on foreign travel contained in a TEPO and
any TEPO which contains such a prohibition and no other prohibitions or requirements must be
for a fixed period of not more than five years
83 Subsection (2) defines a prohibition on foreign travel as a prohibition on travelling to
countries outside the UK (either by reference to particular countries or generally)
84 Subsection (3)(a) determines that a prohibition on foreign travel varied or renewed by
application under section 18 or 19 may be varied or renewed for further fixed periods of no more
than five years each time Subsection (3)(b) requires that an order containing only a foreign
travel restriction may be renewed for up to that fixed period
85 Subsection (4) sets out the requirement on a person in respect of whom a TEPO
containing a prohibition on foreign travel to all countries outwith the United Kingdom has been
made to surrender at a police station each passport that the person has
86 Subsection (5) provides that any passport surrendered must be returned as soon as is
reasonably practicable after the person ceases to be subject to such a prohibition on foreign
travel Circumstances where this subsection would not apply are provided for at subsection (6)
for example where a passport has already been returned to the relevant authority
14
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
Section 18 Orders on sentencing variation renewal and discharge
87 Section 18 makes provision about varying renewing and discharging TEPOs made on
sentencing
88 Subsections (2) to (4) set out general powers in this context The person in respect of
whom the TEPO is made or the prosecutor may apply for variation renewal or discharge of such
a TEPO That application is to be made to the High Court where that court made the order and
to the sheriff otherwise Subsection (4)(b) makes provision about shrieval jurisdiction in this
connection Where the relevant court receives such an application it may vary renew or
discharge individual prohibitions or requirements or add new prohibitions or requirements it
may renew the whole order or it may discharge the whole order
89 Subsection (5) provides that the court must before making an order under this section
give an opportunity to make representations to the person in respect of whom the order is made
the prosecutor and the chief constable Subsection (6) provides that after taking into account
any such representations the court may then make such order as it thinks appropriate
90 Subsection (7) sets out the tests the court must consider when deciding whether to vary
renew or discharge TEPOs made on sentencing (including by adding new prohibitions or
requirements) or any prohibitions or requirements within them Subsection (7)(a) applies the
tests for the making of a TEPO to any variation (including an increase or a relaxation of a
requirement or prohibition) renewal or addition Subsection (7)(b) applies those tests to any
discharge of a prohibition or requirement or of an order
91 Subsection (8) makes it clear that an order varying or renewing a TEPO is subject to the
requirements and prohibitions established by sections 16 and 17 in the same way as the original
order
92 Subsection (9) defines ―prosecutor for the purposes of this section
Section 19 Orders on application variation renewal and discharge
93 Section 19 makes provision about the variation renewal or discharge of TEPOs made on
application
94 Subsections (2) to (4) set out general powers in this context The person in respect of
whom the TEPO is made or the chief constable may apply to the sheriff for variation renewal or
discharge of a TEPO made on application Subsection (4)(b) makes provision about shrieval
jurisdiction in this connection Where the sheriff receives such an application the sheriff may
vary renew or discharge individual prohibitions or requirements or add new prohibitions or
requirements renew the order so that the period of the order itself is extended or discharge the
whole order
95 Subsection (5) provides that the sheriff must before making an order under this section
give an opportunity to make representations to the person in respect of whom the order is made
15
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
and the chief constable Subsection (6) provides that after taking into account any such
representations the sheriff may then make such an order as the sheriff thinks appropriate
96 Subsection (7) sets out the tests the sheriff must consider when deciding whether to vary
renew or discharge TEPOs on application (including by adding new prohibitions or
requirements) or any prohibitions or requirements within them Those tests reflect the tests for
the making of a TEPO
97 Subsection (8) provides that when determining an application under this section the
sheriff may consider conduct which occurred before this section comes into force
98 Subsection (9) makes it clear that an order varying or renewing a TEPO is subject to the
requirements and prohibitions established by sections 16 and 17 in the same way as the original
order
Section 20 Interim prevention orders
99 Section 20 gives power to a sheriff to make an interim TEPO while the main application
under section 14 is being determined The sheriff may make such an order if the sheriff
considers it just to do so (subsection (1)) and such an order may contain prohibitions or
requirements (or both) in relation to the person in respect of whom the order is to have effect
(subsection (2)) Those prohibitions or requirements may relate to things to be done or not done
in any part of Scotland or anywhere outwith Scotland (subsection (3))
100 Subsection (4) provides that an interim TEPO will only have effect for a fixed period
specified in the order and will cease to have effect on the determination of an application for a
TEPO under section 14 if that fixed period has not expired
101 Subsection (5) allows for an application to a sheriff in the sheriffdom of the sheriff who
made the interim TEPO for variation or discharge of that order Such an application may be
made by the person in respect of whom the order was made or the chief constable
Section 21 Appeals prevention orders
102 Section 21 provides for an appeals process in relation to TEPOs and interim TEPOs
103 Subsection (1) makes provision about TEPOs made on sentencing and any variation or
renewal of such a TEPO These are to be treated as sentences for the purposes of any appeal
104 Subsections (2) (3) and (4) make provision about appeals in relation to TEPOs made on
application any variation or renewal of such a TEPO and interim TEPOs The person in respect
of whom the order was made or the chief constable may appeal against any of these orders
16
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
Trafficking and exploitation risk orders
Section 22 Risk orders
105 Section 22 provides that the chief constable may apply to a sheriff for a trafficking and
exploitation risk order (TERO) against an adult A TERO differs from a TEPO in that it may be
made where a person has not previously been convicted of a trafficking or exploitation offence
but the personrsquos behaviour indicates a risk that others may be at harm as a result of that person
committing such an offence and intervention at an early stage is necessary to prevent that harm
A TEPO can only be made where a relevant offence has already been committed
106 Subsection (2) sets out the appropriate sheriff to whom an application for such an order
may be made
107 Subsection (3) sets out the tests for making a TERO The sheriff may only make an order
if satisfied that the person in respect of whom the order is sought has acted in a way which
means that there is a risk the person may commit a relevant trafficking or exploitation offence
(subsection (3)(a)) and it is necessary to make the prohibitions or requirements in the order for
the purpose of protecting persons generally or particular persons from the physical or
psychological harm which would be likely to occur if the person committed such an offence
(subsection (3)(b))
108 Subsection (4) provides that in assessing those tests the sheriff may consider conduct
which occurred before this section comes into force
Section 23 Contents of risk orders
109 Section 23 makes provision about the prohibitions or requirements (or both) that may be
contained in a TERO Each prohibition and requirement in a TERO is for a fixed period and the
order itself is for a fixed period The orders and the prohibitions or requirements may all be for
the same period However the Bill allows some requirements and prohibitions in the order to be
set for a shorter period if that is appropriate
110 Subsection (2) provides that both the order and any prohibition or requirement in the
order must have a specified fixed period of at least two years However this does not apply to a
prohibition on foreign travel or to an order that contains a prohibition on foreign travel and no
other prohibitions or requirements Such a prohibition (or an order containing only such a
prohibition) must be for a fixed period of no more than five years under section 24(1))
111 Subsection (4) provides that a TERO may prohibit the person in respect of whom the
order is made from doing things or require that person to do things Different prohibitions and
requirements may have effect for different periods
112 Subsection (5) provides that if the sheriff makes a TERO in relation to a person already
subject to such an order the earlier order will cease to have effect
17
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
Section 24 Prohibitions on foreign travel
113 Section 24 makes provision about prohibitions on foreign travel contained in a TERO
114 As noted above subsection (1) provides that a prohibition on foreign travel contained in a
TERO and any TERO which contains such a prohibition and no other prohibitions or
requirements must be for a fixed period of not more than five years
115 Subsection (2) defines a ―prohibition on foreign travel as a prohibition on travelling to
countries outwith the UK (either by reference to particular countries or generally)
116 Subsection (3)(a) determines that a prohibition on foreign travel varied or renewed under
section 25 may be varied or renewed for further fixed periods of no more than five years each
time Subsection (3)(b) requires that an order containing only a foreign travel restriction may be
renewed for up to that fixed period
117 Subsection (4) sets out the requirement on a person in respect of whom a TERO has been
made containing a prohibition on foreign travel to all countries outwith the United Kingdom to
surrender at a police station each passport that the person has Subsection (5) provides that any
passport surrendered must be returned as soon as is reasonably practicable after the person
ceases to be subject to a prohibition on foreign travel to all countries outwith the United
Kingdom Circumstances where this subsection would not apply are provided for at subsection
(6) for example where a passport has already been returned to the relevant authority
Section 25 Variation renewal and discharge of risk orders
118 Section 25 makes provision about the variation renewal or discharge of TEROs
119 Subsections (1) to (3) set out general powers in this context The person in respect of
whom the TERO is made or the chief constable may apply to the sheriff for variation renewal or
discharge of a TERO Subsection (3) makes provision about shrieval jurisdiction in this
connection Where the sheriff receives such an application the sheriff may vary renew or
discharge individual prohibitions or requirements or add new prohibitions or requirements
renew the whole order or discharge the whole order
120 Subsection (4) provides that the sheriff must before making an order under this section
give an opportunity to make representations to the person in respect of whom the order is made
and the chief constable Subsection (5) provides that after taking into account any such
representations the sheriff may then make any order the sheriff considers appropriate
121 Subsection (6) sets out the tests the sheriff must consider when deciding whether to vary
renew or discharge TEROs (including by adding new prohibitions or requirements) or any
prohibitions or requirements within them Subsection (6)(a) applies the tests for the making of a
TERO to any variation (including an increase or a relaxation of a requirement or prohibition)
renewal or addition Subsection (6)(b) applies those tests to any discharge of a prohibition or
requirement or of an order
18
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
Section 26 Interim risk orders
122 Section 26 provides that a sheriff may make an interim TERO while the main application
under section 22 is being determined The sheriff may make such an order if the sheriff
considers it just to do so (subsection (1)) and such an order may contain prohibitions or
requirements (or both) in relation to the person in respect of whom the order is to have effect
(subsection (2)) Those prohibitions or requirements may relate to things to be done or not done
in any part of Scotland or anywhere outwith Scotland (subsection (3))
123 Subsection (4) provides that an interim TERO will only have effect for a fixed period
specified in the order and will cease to have effect on the determination of the main application
if that fixed period has not already expired
124 Subsection (5) allows for an application for variation or discharge of an interim TERO
(or a requirement or prohibition in the order) to be made to a sheriff in the sheriffdom of the
sheriff who made the interim order by the person in respect of whom the order was made or the
chief constable (subsection (6))
Section 27 Appeals risk orders
125 Section 27 provides for an appeals process in relation to TEROs and interim TEROs and
any order varying or renewing such a TERO or interim TERO The person in respect of whom
the order was made or the chief constable may appeal against any of these orders
Offences and supplementary provision
Section 28 Offences
126 Section 28 makes provision about breach of TEPOs and TEROs
127 Subsections (1) and (2) provide that a person commits an offence if that person does
anything which the person is prohibited from doing by an order or fails to do anything which the
person is required to do by a TEPO or a TERO or an interim TEPO or TERO
128 Subsection (3) makes provision about penalties in relation to these offences A person
who commits an offence under this section is liable on summary conviction to imprisonment for
a term not exceeding 12 months or a fine not exceeding the statutory minimum (or both) On
conviction on indictment that person is liable to imprisonment for a term not exceeding five
years or a fine (or both)
Section 29 Enforcement of other UK orders
129 Section 29 provides that the Scottish Ministers may modify by regulations the list of
orders at section 28(2) so that a breach of those orders in Scotland constitutes an offence under
section 28(1) The orders which may be added are ―relevant UK orders Those are described in
subsection (2) as orders under the law of England and Wales or Northern Ireland which appear to
the Scottish Ministers to be equivalent or similar to TEPOs TEROs or interim TEPOs or
TEROs
19
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
Section 30 Interpretation of Part 4
130 Section 30 defines certain terms used in Part 4
PART 5 - STRATEGY AND REPORTING
Section 31 Trafficking and exploitation strategy
131 Section 31 places a duty on the Scottish Ministers to prepare a trafficking and
exploitation strategy The strategy under this section is a strategy which sets out such actions
arrangements and outcomes as the Scottish Ministers consider appropriate in relation to the
conduct which constitutes an offence under this Act
132 Subsection (3) lists some of the matters which may be set out in the strategy though that
list is not exhaustive Those matters include for example training and awareness raising in
relation to the detection and prevention of the conduct which constitutes an offence of human
trafficking or an offence under section 4
Section 32 Review and publication of strategy
133 Subsection (1) of section 32 provides that the strategy prepared under section 31 must be
reviewed by the Scottish Ministers every three years Following a review the Scottish Ministers
are required by subsection (2) to prepare a report on the review including an assessment of the
extent to which the strategy has been complied with and may prepare a revised strategy If a
decision is taken following such a review not to prepare a revised strategy the Scottish Ministers
must set out their reasons for that decision
134 Subsection (4) places a duty on the Scottish Ministers to consult with those likely to have
an interest in the strategy before preparing or reviewing the strategy Those likely to have an
interest include but are not limited to businesses support agencies faith based groups etc
135 Subsection (5) requires the Scottish Ministers to publish and lay before the Scottish
Parliament each strategy and report prepared under this section
Section 33 Duty to co-operate on strategy
136 Section 33 provides that Scottish public authorities as specified in regulations that may
be made by the Scottish Ministers must provide such information and assistance as the Scottish
Ministers may reasonably require and otherwise co-operate with the Scottish Ministers in the
preparation or review of the strategy A specified public authority could include for example
Police Scotland and local authorities
Section 34 Duty to notify and provide information about victims
137 Section 34 places a duty on specified Scottish public authorities to notify the chief
constable of the Police Service of Scotland about a person who is or appears to be a victim of
20
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
an offence under section 1 or section 4 This duty would not affect any other general right to
report information relating to crime
138 Subsection (2) requires that a notification relating to an adult is anonymised and does not
include any information that identifies the adult or enables the adult to be identified unless the
adult consents to that data being provided
139 Subsection (3) provides that the Scottish Ministers may by regulations specify the
Scottish public authorities who are to be subject to this duty and may make provision about the
information to be included in the notification The regulations will be subject to the negative
procedure
PART 6 ndash FINAL PROVISIONS
Section 35 Offences by bodies corporate etc
140 Section 35 provides that where an offence under the Bill was committed by a body
corporate or a Scottish partnership or other unincorporated association and it is proved that the
offence was committed with the consent or connivance of or was attributable to any neglect on
the part of a relevant individual or someone purporting to be acting in the capacity of a relevant
individual that individual as well as the body corporate partnership or unincorporated
association commits the offence and is liable to be proceeded against and punished accordingly
141 Subsection (2) defines what is meant by a ―relevant individual for the purpose of this
section
Section 36 Interpretation
142 Section 36 defines certain terms for the purposes of the Bill for example the definition
of ―travel
Section 37 Regulations
143 The Scottish Ministers are given various powers under this Bill to make regulations
Section 37 provides for the parliamentary procedure which is to be applicable in relation to each
of those powers
Section 38 Ancillary provision
144 Section 38 provides that the Scottish Ministers may make regulations containing such
incidental supplementary consequential transitional transitory or saving provision as they
consider necessary or expedient for the purposes of or in connection with the provisions of the
Bill
21
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
Section 39 Minor and consequential amendments
145 Section 39 introduces the schedule which makes minor amendments and amendments
consequential on the provisions of the Bill Given their replacement in Part 1 of the Bill the
schedule repeals the current offences in relation to human trafficking (section 22 of the 2003 Act
and section 4 of the 2004 Act) and slavery servitude and forced or compulsory labour (section
47 of the 2010 Act)
Section 40 Crown application
146 Section 40(1) provides that none of the provisions made by or under the Act are capable
of making the Crown criminally liable In accordance with subsection (2) enforcement of
offences against the Crown is to be done by the Scottish Ministers or any other public body or
office-holder with responsibility for enforcing the provision applying to the Court of Session for
a civil declarator of non-compliance This provision does not apply to persons in the public
service of the Crown
Section 41 Commencement
147 Section 41 provides that sections 36 37 38 40 41 and 42 of the Bill come into force on
the day after Royal Assent All other provisions are to come into force on a day appointed by
regulations made by the Scottish Ministers
22
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
FINANCIAL MEMORANDUM
INTRODUCTION
1 This document relates to the Human Trafficking and Exploitation (Scotland) Bill (―the
Bill) introduced in the Scottish Parliament on 11 December 2014 It has been prepared by the
Scottish Government to satisfy Rule 932 of the Parliamentrsquos Standing Orders It does not form
part of the Bill and has not been endorsed by the Parliament
2 The purpose of the Bill is to consolidate and strengthen the existing criminal law against
human trafficking and exploitation and enhance the status and support provided to victims Bill
provisions are in the following Partsmdash
Part 1 (Offences) includes provision on the creation of a single offence of human trafficking
for all types of exploitation of both adults and children establishes statutory aggravators of
human trafficking for use with other crimes and reframes the current standalone offence of
slavery servitude and forced or compulsory labour
Part 2 (Protection of victims) includes provision on prosecutorial guidelines for the
prosecution of victims and provision about the support and assistance to which adult victims
are entitled
Part 3 (Confiscation of property) includes provision on detention and forfeiture of property
and proceeds of crime
Part 4 (Trafficking and exploitation prevention and risk orders) includes provision on
two new preventive orders the trafficking and exploitation prevention order and the
trafficking and exploitation risk order
Part 5 (Strategy and reporting) includes provision on the trafficking and exploitation
strategy and the duty on specified Scottish public authorities to notify and provide
information about victims
Part 6 contains general and ancillary provisions
3 This Financial Memorandum considers the financial implications of each of the elements
of the Bill where relevant
BACKGROUND
4 Before considering the financial implications associated with the specific provisions
within the Bill it is important to consider both the current estimated extent of human trafficking
in Scotland and existing activity by public bodies and others in response to this issue
23
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
Extent of human trafficking in Scotland
5 Human trafficking is by its nature a hidden crime The National Referral Mechanism
(NRM) is the process set up by the UK Government to identify and support victims of trafficking
in the UK The NRM is also the mechanism by which the UK Human Trafficking Centre
collects data about potential victims of trafficking Information about suspected child and adult
victims of human trafficking is referred by relevant ―first responder organisations such as the
police and third sector bodies for example Migrant Help and the Trafficking Awareness Raising
Alliance (TARA) Referrals relate to victims trafficked from outside and within the UK The
table below summarises the most recent available information on NRM referrals from first
responder organisations in Scotland
Table 1 Recent referrals from first responders in Scotland of potential child and adult
human trafficking victims to the National Referral Mechanism
2012 2013
Adults 67 77
Children 29 22
Total 96 99
of all UK Referrals 8 6
Source National Crime Agency National Referral Mechanism Statistics 2012 and 20131
6 Various reports confirm that the number of victims referred through the NRM is likely to
be a significant underestimate of the actual number of potential victims of trafficking For
example the Equality and Human Rights Commission Inquiry into Human Trafficking in
Scotland (2011) noted ―estimates of identified potential victims do not reflect what is likely to be
a much greater number of unidentified victims2
7 The UK National Crime Agency (NCA) Strategic Assessment of the Nature and Scale of
Human Trafficking in the UK3 aims to provide an indication of the nature and scale of human
trafficking beyond the number of referrals to the NRM The assessment is produced using
intelligence held by the NCA the NRM and intelligence information collected from agencies
such as Police Scotland the Home Office Gangmastersrsquo Licensing Authority and non-
government organisations The assessment removes information of potential victims referred to
the NRM who have received a negative ―reasonable grounds or ―conclusive decision (ie it
has been confirmed that they are not victims of trafficking) or duplicate information about
individuals (ie the same person has been referred more than once or by more than one agency)
to show a total number of ―unique potential victims of trafficking The NCA Assessment for
2013 indicated that there were significantly more unique potential victims of human trafficking
identified across the UK than the numbers referred to the NRM even excluding those that
received a negative decision and that the number of unique victims was increasing
1 httpwwwnationalcrimeagencygovukpublications399-nca-strategic-assessment-the-nature-and-scale-of-
human-trafficking-in-2013file 2httpwwwequalityhumanrightscomsitesdefaultfilesdocumentsScotlandHuman_Trafficking_in_Scotland_inq
uiry_into_human_trafficking_in_scotland-full-report_pdf_pdf 3 httpwwwnationalcrimeagencygovukpublications399-nca-strategic-assessment-the-nature-and-scale-of-
human-trafficking-in-2013file
24
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
Table 2 Comparison of recent UK referrals to the National Referral Mechanism and the
National Crime Agency Strategic Assessment of the Scale of Human Trafficking
2012 2013 Change
Referred to NRM 778 1095 +41
NCA Assessment No of
Unique Potential Victims
Identified
2255 2744 +22
Source National Crime Agency Strategic Assessment of the Nature and Scale of Human
Trafficking in the UK4
8 For Scotland the NCA Assessment for 2013 identified 55 unique potential victims of
human trafficking compared with 99 referrals to the NRM It is not known why in contrast to
the position in England and Wales the NCA Assessment for Scotland is lower than the NRM
referrals although it will exclude potential victims who received a negative conclusive decision
and duplicate referrals However these numbers must be treated with significant caution There
remains strong conviction amongst law enforcement bodies and victims organisations that there
are more victims of trafficking than are identified and that even once identified victims are
often unwilling to engage with authorities or identify themselves as having been trafficked For
the purpose of this Financial Memorandum the Scottish Government has accepted the NCA
assessment that there are likely to be between two and three times as many potential victims of
trafficking as are currently identified through the NRM This assessment is based on the Scottish
Governmentrsquos best understanding of the hidden nature of this crime and the known reluctance of
some victims to identify their trafficked status or to engage with public authorities
Criminal justice response to human trafficking and exploitation
9 There have been relatively few prosecutions and convictions for human trafficking
offences under existing criminal justice legislationmdash
The Criminal Justice (Scotland) Act 20035 (―the 2003 Act) provides for offences of
trafficking for the purposes of exploitation by way of prostitution
The Asylum and Immigration (Treatment of Claimants etc) Act 20046 (―the 2004
Act) provides for offences of trafficking for labour and other forms of exploitation
The Criminal Justice and Licensing (Scotland) Act 20107 (―the 2010 Act) amended
and extended the 2003 and 2004 Acts and created a standalone offence of holding
someone in slavery or servitude or requiring a person to perform forced or
compulsory labour
10 The first successful convictions for human trafficking in Scotland were in 2011 under
section 22 of the 2003 Act for trafficking for the purposes of prostitution During 2013 a total of
four people were convicted of human trafficking offences - one person under section 22 of the
2003 Act and three people under section 4 of the 2004 Act for trafficking for forced marriage
4 httpwwwnationalcrimeagencygovukpublications399-nca-strategic-assessment-the-nature-and-scale-of-
human-trafficking-in-2013file 5 httpwwwlegislationgovukasp20037
6 httpwwwlegislationgovukukpga200419
7 httpwwwlegislationgovukasp201013
25
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
The average custodial sentence length for those convicted of trafficking offences was 847 days
(just under two years and four months) as well as any confiscation order imposed
11 Although the number of convictions for trafficking offences has been small police and
the Crown Office and Procurator Fiscal Service (COPFS) have confirmed that even though it is
not possible to always prove the trafficking offence where a credible suspicion exists people
suspected of involvement with trafficking can and often are prosecuted and convicted for other
crimes such as crimes associated with prostitution forced marriage immigration offences and
drugs offences etc
12 Police Scotland has established a dedicated National Human Trafficking Unit to enhance
the police response to human trafficking through awareness raising intelligence gathering
training and providing divisions with advice and specialist knowledge The COPFS has
appointed dedicated expert fiscals to prosecute human trafficking offences
Support for victims of trafficking
13 The Scottish Government currently allocates direct grant funding to non-government
organisations to provide and facilitate immediate support and assistance to the adult victims of
human trafficking This support can include immediate safe accommodation psychological
support assistance in accessing medical treatment material assistance interpretation and
translation and assistance either with repatriation or securing longer-term access to mainstream
services and support such as welfare benefits and housing The provision of support and
assistance is not conditional on the potential victim being willing to participate in the criminal
justice process Under the NRM victims of trafficking are guaranteed ―a recovery and reflection
period to recover from their experience escape the influence of those alleged to have trafficked
or exploited them and consider whether to engage with authorities The Council of Europe
Convention on Action Against Trafficking in Human Beings8 provides for a reflection period of
at least 30 days for all trafficked victims when there are reasonable grounds to believe that the
person concerned is a victim The current minimum recovery and reflection period in Scotland
and the rest of the UK is 45 days
14 In 2013-14 total grant funding of pound723000 was provided by the Scottish Government
towards the costs of ensuring immediate support and assistance for the adult victims and
potential victims of trafficking in Scotland This funding was provided through two non-
government organisationsmdash
the TARA Service which works with women aged 18 years and over across
Scotland where there are concerns that they have been trafficked for commercial
sexual exploitation and
Migrant Help a UK-wide organisation providing support and advice services to
migrants including new asylum claimants refugees EU nationals etc
15 Support for the child victims of trafficking is co-ordinated by local authorities as part of
their child protection arrangements and in line with the policy intention that children remain
8 httpwwwcoeinttdghlmonitoringtraffickingdocsconvntnCETS197_enasp
26
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
children first and that their needs should be treated accordingly The Scottish Government has
produced a toolkit for agencies working with children and young people to ensure that staff are
able to identify trafficked children and make appropriate referrals so that victims can receive
protection and support The toolkit is designed to be used in conjunction with National Child
Protection Guidance9 which was first published in 2010 and refreshed in 2014 and other
relevant national and international guidance Information about current expenditure on child
victims of trafficking is not recorded separately from information about wider expenditure on
child protection services
Lord Advocate guidance on prosecution policy
16 In his letter of 21 January 2013 to the Scottish Parliament European and External
Relations Committee10
the Lord Advocate set out the current arrangements for fiscals
considering the prosecution of a confirmed or potential victim of human trafficking where it is
believed or claimed that the crime was committed as a direct consequence of the personrsquos
trafficked status The letter set out the basis for the current Lord Advocatersquos guidance to
prosecutors including the presumption against the prosecution of a credible trafficking victim
for crimes that arise as a consequence of the victimrsquos trafficked status
Human trafficking strategic approach awareness raising and training
17 The first Scottish Human Trafficking Summit was hosted by the Cabinet Secretary for
Justice in October 2012 The summit brought together key law enforcement public private and
third sector organisations with an interest in human trafficking Following the summit a number
of strategic collaborative actions were agreed and progressed including with reference to
awareness raising and training for frontline staff data collection and analysis identification care
and support for both child and adult victims of trafficking and enhancing enforcement
18 One specific workstream related to awareness raising and training of front-line staff
likely to come into contact with trafficking victims or potential instances of trafficking
Following the summit Police Scotland with support from the Scottish Government and others
prepared published and circulated widely an awareness raising leaflet ndash Reading the Signs11
ndash to
assist police officers and staff in other front line posts in identifying the signs of potential
trafficking The Scottish Government also participated with the UK Government in a UK-wide
public awareness raising campaign about modern slavery and trafficking
19 In addition to general awareness raising specific training material was prepared for key
front-line staff For example all police officers were required to undertake an e-learning course
on human trafficking A special leaflet for health workers was prepared and circulated by NHS
Health Scotland An e-learning module for health workers about their role in identifying and
9 httpwwwscotlandgovukPublications2014053052
10httpwwwscottishparliamentukS3_EuropeanandExternalRelationsCommitteeGeneral20DocumentsLetterfro
mTheLordAdvocatepdf 11
httpwwwscotlandpoliceukassetspdf174967human-traffickingview=Standard
27
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
responding to victims of trafficking was made available through the National Gender Based
Violence and Health Programme12
IMPACT OF SPECIFIC PROVISIONS
PART 1 - OFFENCES
Single trafficking offence
20 The Bill establishes a new single offence of human trafficking for all types of
exploitation for both adults and children replacing existing separate criminal offences (see
paragraph 9 above) As noted above to date there have been relatively small numbers of
prosecutions under existing trafficking offences
21 The maximum penalty for conviction on indictment for the single trafficking offence will
be life imprisonment compared with a maximum of 14 years for the current separate offences
Although it will be for the court to decide how to sentence people convicted under the new single
offence in any given case it is likely that the availability of a higher maximum sentence will
have cost implications for the Scottish Prison Service (SPS)
Revised slavery servitude and forced labour offence
22 The Bill will also repeal and replace the existing exploitation offence within section 47 of
the 2010 Act which criminalises holding someone in slavery or servitude or requiring them to
perform compulsory or forced labour The offence will be revised and strengthened to allow the
court to consider in assessing whether a person has been a victim of an offence the victimrsquos
characteristics such as age physical or mental illness disability or where relevant family
relationships The maximum penalty for the offence will be increased from 14 years for the
current offence to life imprisonment for a conviction on indictment
Statutory aggravators
23 The Bill makes provision for statutory aggravators which apply in cases where an
accused person commits an offence connected with human trafficking and for when the offence
is committed in connection with the accusedrsquos position as a public official The court must take
the aggravation into account in determining the appropriate sentence if it is proved that the
offence is aggravated in this way The statutory aggravator is not anticipated to have any
substantial financial implications for public private or third sector bodies or for individuals
Costs on the Scottish Administration
24 Consolidating and clarifying the existing criminal law on trafficking and exploitation
alongside other measures arising from the Bill and the trafficking and exploitation strategy
including training and awareness raising and support for victims should increase the potential
for successful investigations prosecutions and convictions of human trafficking and exploitation
offences There have been six successful prosecutions for a specific trafficking offence to date in
Scotland with an average custodial sentence length of two years and four months against a
12
httpwwwgbvscotnhsuk
28
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
maximum possible sentence of 14 years The maximum number of prosecutions in any one year
was four individuals in two separate cases
25 Police and prosecutors already have in place specialist resources for investigating and
prosecuting human trafficking and exploitation offences and these provisions will not add to
these costs Law enforcement agencies have confirmed that whilst the number of prosecutions
for specific trafficking offences has been low where victims are identified but are unwilling to
testify individuals suspected of trafficking and exploitation will be prosecuted in court for other
related offences The Lord Advocate has identified that ―If we donrsquot have the evidence [to
prosecute for a specific human trafficking offence] we prosecute for fraud ID theft or asylum
and immigration offences13
26 The Scottish Government does not anticipate therefore significant additional cost
implications for law enforcement agencies or courts as cases will often proceed with a
trafficking offence alongside or in place of other related offences For the same reason the
Scottish Government does not anticipate significant additional cost on the Scottish Legal Aid
Board (SLAB) However if it is assumed that the number of successful trials proceeding in any
single year doubles from two to four there would be some additional costs on the COPFS the
Scottish Court Service (SCS) and SLAB based on the average unit costs for cases proceeded
either through Sheriff Court Solemn procedure or through the High Court These estimated costs
depending on whether cases are proceeded through the High Court or Sheriff Court solemn
procedure are illustrated in the table below
Table 3 Estimated unit costs of additional trial procedures through either High Court or
Sheriff Court solemn procedure (pound000)
Average prosecution
costs per procedure
(COPFS)
Average court costs
per procedure (SCS)
Average legal aid
costs per procedure
(SLAB)
Sheriff Court solemn
procedure (pound000) pound49 pound19 pound16
High Court (pound000) pound556 pound90 pound135
Estimated average
costs of 2 additional
trial procedures 4
accused per annum
(pound000)
pound99-pound1112 pound38-pound180 pound64-pound540
Source costs of the Criminal Justice System in Scotland Dataset (2013)14
27 There will also be costs to the SPS both through any increase in the number of successful
convictions for trafficking and exploitation offences and an anticipated increase in the average
length of custodial sentence for these crimes It is not possible to know for certain the total
13
httpwwwdailyrecordcouknewsscottish-newsonly-three-successful-prosecutions-brought-4457684 14httpwwwscotlandgovukTopicsStatisticsBrowseCrimeJusticePublicationscostcrimjustsc
otcostcrimjustdatasethttpwwwscotlandgovukTopicsStatisticsBrowseCrimeJusticePublicationscostcrimj
ustscotcostcrimjustdataset
29
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
number of future convictions or what sentencing decisions might be taken by courts in individual
cases
28 The table below illustrates the potential cost implications of either maintaining or
increasing the current maximum number of convictions in any individual year from four to eight
convictions For the purpose of the calculation it is assumed that the average custodial sentence
length for trafficking and exploitation offences will increase from two years and four months
(classified as a short-term sentence) to over four years (classified as a long-term sentence) as
increasing the maximum sentence to life imprisonment is anticipated to increase the average
sentence for a trafficking offence The estimated average annual cost of a prison place based on
SPS figures is pound42500 Taking account of the current early release arrangements for long-term
prisoners and the overlapping of individual sentences would result in an estimated increase of 8
to 21 total prison places each year after four years ndash ie with an additional four people receiving
custodial sentences each year and released by the Parole Board at the halfway point of their
sentence or automatically at the two-thirds point The total costs to the SPS will be within a
range of pound340000 to pound890000 These costs will fit within the overall budget costs to the SPS
As at 17 October 2014 there were 7731 people in custody in Scotland An additional 21 places
accounts for 03 of the total prison population
Table 4 Estimated range of costs to the Scottish Prison Service from increasing the
number and average length of successful prosecutions for trafficking offences
Year 1 Year 2 Year 3 Year 4
Additional Prison places 0-4 4-12 8-17 8-21
Additional Cost (pound000) pound0-pound170 pound170- pound510 pound340-pound720 pound340-pound890
Table 5 Estimated range of combined costs for trial procedures and prison places
Year 1 Year 2 Year 3 Year 4
Additional Cost (pound000) pound20-pound353 pound190- pound693 pound360-pound900 pound360-pound1073
Costs on other bodies individuals and businesses
29 There will be no new costs falling on other bodies individuals and businesses as a
consequence of these sections but see the section below with reference to victim support
Costs on local authorities
30 There will be no new costs falling on local authorities as a consequence of these specific
sections
PART 2 - PROTECTION OF VICTIMS
Duty on the Lord Advocate to publish guidance about the prosecution of credible trafficking and
exploitation victims who have committed offences
Costs on the Scottish Administration
31 As noted above the Lord Advocate already prepares and publishes guidance to fiscals
about the prosecution of credible victims of human trafficking for crimes committed as a direct
30
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
consequence of their trafficking status The requirement to publish such guidance would in
future be statutory However there will be no new costs on the Scottish Government or the
COPFS as a consequence of placing the requirement for the Lord Advocate to issue this
guidance on a statutory basis
Costs on other bodies individuals and businesses
32 There will be no new costs falling on other bodies individuals and businesses as a
consequence of these sections
Costs on local authorities
33 There will be no new costs falling on local authorities as a consequence of these sections
Ensure the rights of victims to access and support
34 The Bill will place a statutory duty on the Scottish Ministers to secure the provision of
relevant immediate support and recovery services for adult victims of trafficking subject to an
assessment of need The Bill will specify those victims or potential victims entitled to support
and the minimum time periods during which such services should be provided Specifically the
Bill will require Ministers to provide support and assistance based on each individualrsquos assessed
needs during the recovery and reflection period (currently 45 days) during which the
individualrsquos trafficking status is determined The Bill specifies minimum support and assistance
that should be considered as part of the assessment including access to housing treatment
interpretation services etc The Scottish Ministers have the flexibility to provide support and
assistance outwith the specified reflection and recovery period where this is considered
appropriate
35 As noted above the Scottish Ministers already provide grant funding totalling pound723000
to third sector organisations to assist identified adult potential victims of trafficking Provision of
support to adult victims will be placed on a statutory basis The number of adult potential victims
of trafficking referred through the NRM during 2013 was 77 although not all of these will have
requested assistance or received the full range of support services It is assumed that other
actions arising from the Bill including the single offence and publication of the trafficking and
exploitation strategy will result over time in an increase in identified victims and requests for
assistance and support
Costs on the Scottish Administration
36 The Scottish Government anticipates that improved awareness raising and training of
front-line staff will result in an increase in the number of victims identified over time It is not
possible to know how quickly this improvement will be achieved However between 2012 and
2013 the number of potential identified victims across the UK identified through the NCA
strategic assessment and NRM increased by 22 and 41 respectively Given the need for
awareness raising and training to impact the Scottish Government does not anticipate a similar
scale of increase in the immediate term but the Government considers it reasonable to anticipate
a possible increase of between 10 and 20 per annum in the overall number of requests for
assistance and support each year over the next four years Assuming a similar mix of needs as
31
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
current victims the increased costs to the Scottish Government on top of existing funding
would range between pound290000 to pound580000 per annum by year four
Table 6 Estimated range of costs increases for victim support and assistance (pound000)
Year 1 Year 2 Year 3 Year 4
Additional Cost (pound000) pound0-pound140 pound140-pound280 pound220-pound430 pound290-pound580
Costs on other bodies individuals and businesses
37 There will be no additional costs on other public bodies individuals or businesses
associated with these specific provisions There will be no direct additional costs falling on third
sector organisations as a consequence of the specific provisions It is likely however that all or
part of the additional funding identified above will be directed by the Scottish Government
through relevant third sector organisations with the expertise to provide immediate support and
protection to victims
Costs on local authorities
38 The Bill creates no new legislative requirements for the delivery of childrenrsquos services
recognising that this already exists It is therefore not anticipated that the Bill will result in any
quantifiable additional costs on local authorities or other public bodies as a result of support for
child victims Child victims of trafficking are supported as part of the Getting It Right for Every
Child (GIRFEC) approach any child whether identified as trafficked or not will be assessed on
the basis of its needs It is anticipated that as a consequence of the strategy (for which the Bill
provides) that more children may be identified as trafficked It is noted however that various
reports including most recently the UK Governmentrsquos NRM Review Report15
have found that
children who are already receiving support from relevant authorities in the UK are often not
identified as trafficked victims because of lack of awareness of the referral process It may be
that actions arising from the development of the strategy and dialogue with stakeholders will
give rise to additional activity or costs with reference to child victims of trafficking but these are
not known and cannot be estimated at this time
PART 3 - CONFISCATION OF PROPERTY
39 The Bill will provide police with powers to detain the property such as cars boats etc of
a person arrested for a trafficking offence This power will be exercised at the time of arrest and
is not expected to impose any additional costs on the police or others
Costs on the Scottish Administration
40 There will be no additional costs on the Scottish Government as a result of these
provisions Individuals can apply to the court to have vehicles ships or aircraft released from
detention This will be considered as part of the overall case and will not add to the costs to the
criminal justice system
15
httpsnrmhomeofficegovuk
32
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
Costs on other bodies individuals and businesses
41 There will be no additional costs on other public bodies individuals or businesses
including Police Scotland as a result of these specific provisions
Costs on local authorities
42 There will be no additional costs on local authorities as a result of these specific
provisions
PART 4 - TRAFFICKING AND EXPLOITATION PREVENTION AND RISK ORDERS
Introduce new measures to disrupt and prevent trafficking and exploitation
43 The Bill will introduce two new civil orders and associated interim orders to assist in
preventing trafficking and exploitation Trafficking and Exploitation Prevention Orders (TEPOs)
and Trafficking and Exploitation Risk Orders (TEROs) Where an individual has been convicted
of a trafficking or exploitation offence or an offence with a statutory trafficking aggravator a
TEPO may be imposed by a court where there is a risk that that individual may commit a further
human trafficking offence and it is necessary to make the order to protect people from the
physical or psychological harm which might occur if such an offence were committed The
TEPO will prevent the individual from engaging in activities described in the order Where a
person has not been convicted of a trafficking or exploitation offence but a court considers that
the person presents a significant risk of harm to others through the individual committing a
trafficking or exploitation offence the court can impose a TERO restricting specific activities or
imposing requirements These orders will be civil but breach of an order will constitute a
criminal offence with a maximum penalty of five years in prison available to the court
44 The Bill will categorise the trafficking and exploitation offences as lifestyle offences in
order to automatically trigger provisions within the Proceeds of Crime Act 2002 (―the 2002
Act) The definition of an offence as a ―lifestyle offence allows for proceedings under the
2002 Act to confiscate assets or monies from the individual convicted of the offence
Costs on the Scottish Administration
45 The purpose of TEPOs and TEROs is to prevent criminal activity associated with
trafficking and exploitation from arising There will be some cost implications for law
enforcement organisations which will need to monitor the terms of any order imposed by the
courts However these will be offset by the savings made from being able to intervene at an
early stage of criminality if an order has been breached For the equivalent civil orders within the
UK Modern Slavery Bill the UK Government has estimated potential net savings of between
pound130000 and pound1090000 per annum The Scottish Government has not incorporated any
savings for the purpose of Scottish legislation but expects the costs of implementing TEPOs and
TEROs and detention powers to be at least cost neutral for the Scottish Administration and other
public bodies
33
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
46 The Bill will give courts powers to impose a TEPO at the time of sentencing There will
be no immediate additional costs for the courts or COPFS associated with TEPOs imposed as
part of sentencing The Chief Constable of Police Scotland will also be able to apply to the court
for a TEPO to be imposed on a relevant offender previously convicted of a trafficking offence
There will be costs to Police Scotland in making the application and to the SCS and to SLAB in
considering the application As there have been only six previous convictions for trafficking
offences in Scotland the Scottish Government expects the number of applications for TEPOs for
previous convictions to be small one-off and will not add to the overall costs of the criminal
justice system The Chief Constable of Police Scotland can also apply to the court for a TERO
against an individual where it is considered that that individual is likely to commit a trafficking
offence
47 Looking at the equivalent costs for similar civil orders eg Sexual Offences Prevention
Orders the total costs to the SCS the COPFS and SLAB of applying for a TERO or post-
sentencing TEPO are estimated at between pound1000 and pound6000 per order It is not possible to
know how many TEPOs or TEROs might be applied for but assuming a number half the level of
the estimated maximum number of potential convictions for trafficking offences each year (four
to eight) would give estimated costs of between pound2000 (2 x pound1000) and pound24000 (4 x pound6000)
per annum
48 There will be costs to Police Scotland in monitoring TEPOs and TEROs whether
imposed at the time of sentence or by application but this will sit alongside Police Scotlandrsquos
existing crime prevention and investigative responsibilities and is not expected to add to
manpower costs
49 In addition to the costs of imposing and monitoring TEPOs and TEROs there will be
costs associated with prosecuting a breach of a TEPO or TERO Analysis in England and Wales
indicates that breaches of equivalent Serious Crime Prevention Orders are relatively low
Assuming one breach per annum the total combined costs to the COPFS the SCS and SLAB
would be between pound8400 and pound78100 per annum (see the combined costs for either sheriff
court or High Court procedures set out in Table 3 above) Assuming a maximum sentence of
five years the costs to the SPS for additional prison places would be between pound85000 and
pound127500 per annum (ie the pound42500 average costs of a prison place times either two or three
places depending on whether offenders are released early at the halfway or two-thirds point of
their sentence)
50 It is important to remember however that the purpose of TEPOs and TEROs is to
prevent further trafficking and exploitation offences occurring A TEPO or TERO will only be
imposed where a court considers that there is a credible risk of an individual committing such a
crime Any costs associated with the imposition and breach of TEPOs and TEROs needs to be
offset against the potential costs of prosecutions If each TEPO or TERO prevents the costs of a
conviction for an offence as set out in Part 1 above the costs to the Scottish Administration
would be at least cost neutral in terms of saved court and prison places expenditure
34
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
Costs on other bodies individuals and businesses
51 There will be no costs on other bodies businesses or other individuals as a consequence
of these sections
Costs on local authorities
52 There will be no new costs on local authorities as a consequence of these sections
PART 5 - STRATEGY AND REPORTING
Ensure a strategic cross-agency approach to tackling trafficking
53 The Bill places a duty on the Scottish Ministers to prepare publish and regularly review
and update a trafficking and exploitation strategy to assist in ensuring a co-ordinated and
strategic approach to this issue The provisions place a duty on Ministers to consult with such
organisations and individuals as they consider to have a relevant interest in the issues of human
trafficking and exploitation The Bill places a duty on relevant public bodies to be named in
regulations to assist in the preparation and review of the strategy
54 The Bill will place a duty on relevant public authorities to provide anonymised data about
potential human trafficking and exploitation victims to Police Scotland
Costs on the Scottish Administration
55 Activity arising from these provisions within the Bill will build on the activity and
current resources already committed to this area of work
56 Based on similar activities the estimated additional costs to the Scottish Ministers of
preparing and reviewing a trafficking and exploitation strategy will be approximately pound25000
every three years Alongside the preparation and publication of the strategy the Scottish
Ministers would also propose to support additional awareness raising and training activity to
build on the existing awareness raising and training activity already undertaken by relevant
organisations including the NHS Police Scotland and COPFS Consideration would be given to
how best to co-ordinate these resources alongside existing expenditure and activity For the
purposes of the Financial Memorandum and based on current activity additional costs on top of
existing activity are estimated at approximately pound100000 to pound250000 per annum over the first
four years of the Bill This is based on the best estimated costs of preparing and publishing
publicity and guidance material averaged over a number of years The exact costs will depend
on decisions taken in dialogue with stakeholders as part of the preparation of the strategy
57 The Scottish Government anticipates that the costs to relevant public authorities of
providing anonymised data about potential human trafficking victims to Police Scotland will be
marginal Costs to Police Scotland of collating this data will form part of their existing
intelligence gathering activity
35
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
Costs on other bodies individuals and businesses
58 There will be some costs on other bodies individuals and businesses in engaging with the
Scottish Ministers in the preparation and publication of the Strategy For business and
individuals this will be voluntary depending on their willingness to engage For public bodies
their level of engagement will depend on the relevance of the issue of trafficking and
exploitation to their work and their potential contribution to combating this behaviour Any
additional costs are expected to fit within or sit alongside their existing responsibilities for
example with reference to promoting and ensuring equalities and the application of human
rights obligations
Costs on local authorities
59 There will be costs on local authorities associated with engaging in the preparation and
review of the trafficking and exploitation strategy and in awareness raising and training of front-
line staff The additional costs should be marginal on top of the existing guidance and activity
already in place with reference to the identification and support of potential child victims of
trafficking The aim will be to minimise costs for other front-line local authority staff by
adapting the general awareness raising and training materials described above
SUMMARY
60 The table below provides a summary of the costs of each element of the Bill as described
above
Table 7 Summary table of costs for each aspect of the Bill (pound000)
Year 1 Year 2 Year 3 Year 4
Clarifying amp
Strengthening the
Criminal Law ndash Para 28 pound20-pound353 pound190- pound693 pound360-pound900 pound360-pound1073
Ensure the rights of
victims to access and
support - Para 36 pound70-pound140 pound140-pound280 pound220-pound430 pound290-pound580
Introduce new measures to
disrupt and prevent
trafficking pound016
pound0 pound0 pound0
Ensure a strategic cross
agency approach to
tackling trafficking ndash Para
56 pound125-pound275 pound100-pound250 pound100-pound250 pound125-pound275
TOTAL pound215-pound768 pound430-pound1223 pound680-pound1580 pound775-pound1928
16
The Scottish Government considers that the overall costs are at least cost neutral ndash see paragraphs 45 to 50
36
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December
SCOTTISH GOVERNMENT STATEMENT ON LEGISLATIVE
COMPETENCE
On 11 December 2014 the Cabinet Secretary for Justice (Michael Matheson MSP) made the
following statement
―In my view the provisions of the Human Trafficking and Exploitation (Scotland) Bill
would be within the legislative competence of the Scottish Parliament
mdashmdashmdashmdashmdashmdashmdashmdashmdashmdash
PRESIDING OFFICERrsquoS STATEMENT ON LEGISLATIVE
COMPETENCE
On 11 December 2014 the Presiding Officer (Rt Hon Tricia Marwick MSP) made the following
statement
―In my view the provisions of the Human Trafficking and Exploitation (Scotland) Bill
would be within the legislative competence of the Scottish Parliament
37
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December
SP Bill 57ndashEN Session 4 (2014)
HUMAN TRAFFICKING AND EXPLOITATION
(SCOTLAND) BILL
EXPLANATORY NOTES
(AND OTHER ACCOMPANYING DOCUMENTS)
Parliamentary copyright Scottish Parliamentary Corporate Body
Information on the Scottish Parliamentrsquos copyright policy can be found on the website -
wwwscottishparliamentuk
Produced and published in Scotland on behalf of the Scottish Parliamentary Corporate Body by APS
Group Scotland
ISBN 978-1-78534-569-2
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
Section 14 Prevention orders on application
68 Section 14 provides that the chief constable may apply to a sheriff for a TEPO against an
adult
69 Subsection (2) sets out the appropriate sheriff to whom such an application should be
made
70 Subsection (3) sets out the tests for making a TEPO on application The sheriff must be
satisfied that the person in respect of whom the order is sought is a ―relevant offender
(subsection (3)(a)) that since the person first became a relevant offender the person has acted in
a way which means that there is a risk the person will commit a relevant trafficking or
exploitation offence (subsection (3)(b)) and it is necessary to make the prohibitions or
requirements in the order for the purpose of protecting persons generally or particular persons
from the physical or psychological harm which would be likely to occur if the person committed
such an offence (subsection (3)(c))
71 Subsection (4) provides that conduct which occurred before this section came into force
may be considered when determining whether there is a risk that a person may commit a relevant
trafficking offence
Section 15 Meaning of relevant offender
72 Section 15 defines what is meant by a ―relevant offender for the purposes of section 14
73 Subsection (2) provides that a person is a relevant offender if any of the court disposals
listed in the subsection have been made in the UK in relation to that person and in respect of a
relevant trafficking or exploitation offence (as set out in section 12 of the Bill)
74 Subsections (3) to (5) deal with findings of courts and tribunals outside the United
Kingdom Subsection (3) provides that a person is a relevant offender if under the law of a
country outside the United Kingdom a listed disposal is made in respect of a person in relation
to an offence which is equivalent to an offence listed in section 12 Subsections (4) and (5) set
out tests for determining whether an offence is equivalent to a relevant offence In particular
such offences are acts which constitute offences under the law of the country concerned and
which would constitute a relevant trafficking or exploitation offence under the law of Scotland if
done in the UK by a UK national or person habitually resident in Scotland or as regards the UK
(eg by virtue of the fact that travel was arranged into out of or within the UK)
75 Subsection (6) establishes a mechanism for determining whether an act constituting an
offence in a country outside the UK would constitute an offence under the law of Scotland
76 Subsection (8) provides that for the purposes of this section convictions acquittals
findings and cautions include those which took place before this section comes into force
13
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
Section 16 Contents of prevention orders
77 Section 16 makes provision about the prohibitions or requirements (or both) that may be
contained in a TEPO Each prohibition and requirement in a TEPO is for a fixed period and the
order itself is for a fixed period The order and the prohibitions and requirements may all be for
the same period However the Bill allows some requirements and prohibitions in the order to be
set for a period shorter than that of the order if that is appropriate
78 Subsection (2) provides that both the order and any prohibition or requirement in the
order must have a specified fixed period of at least five years The only exception to that
requirement relates to a prohibition on foreign travel and an order containing only a prohibition
on foreign travel (which is dealt with in section 17) and relates to a period of not more than five
years Subsection (4) provides that a TEPO may prohibit the person in respect of whom the
order is made from doing things or require that person to do things Different prohibitions and
requirements may have effect for different periods
79 Subsection (5) provides that if the court makes a TEPO in respect of a person already
subject to such an order the earlier order will cease to have effect
80 Subsection (6) defines what is meant by ―the court for the purposes of the section
Section 17 Prohibitions on foreign travel
81 Section 17 makes provision about prohibitions on foreign travel in TEPOs
82 Subsection (1) provides that a prohibition on foreign travel contained in a TEPO and
any TEPO which contains such a prohibition and no other prohibitions or requirements must be
for a fixed period of not more than five years
83 Subsection (2) defines a prohibition on foreign travel as a prohibition on travelling to
countries outside the UK (either by reference to particular countries or generally)
84 Subsection (3)(a) determines that a prohibition on foreign travel varied or renewed by
application under section 18 or 19 may be varied or renewed for further fixed periods of no more
than five years each time Subsection (3)(b) requires that an order containing only a foreign
travel restriction may be renewed for up to that fixed period
85 Subsection (4) sets out the requirement on a person in respect of whom a TEPO
containing a prohibition on foreign travel to all countries outwith the United Kingdom has been
made to surrender at a police station each passport that the person has
86 Subsection (5) provides that any passport surrendered must be returned as soon as is
reasonably practicable after the person ceases to be subject to such a prohibition on foreign
travel Circumstances where this subsection would not apply are provided for at subsection (6)
for example where a passport has already been returned to the relevant authority
14
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
Section 18 Orders on sentencing variation renewal and discharge
87 Section 18 makes provision about varying renewing and discharging TEPOs made on
sentencing
88 Subsections (2) to (4) set out general powers in this context The person in respect of
whom the TEPO is made or the prosecutor may apply for variation renewal or discharge of such
a TEPO That application is to be made to the High Court where that court made the order and
to the sheriff otherwise Subsection (4)(b) makes provision about shrieval jurisdiction in this
connection Where the relevant court receives such an application it may vary renew or
discharge individual prohibitions or requirements or add new prohibitions or requirements it
may renew the whole order or it may discharge the whole order
89 Subsection (5) provides that the court must before making an order under this section
give an opportunity to make representations to the person in respect of whom the order is made
the prosecutor and the chief constable Subsection (6) provides that after taking into account
any such representations the court may then make such order as it thinks appropriate
90 Subsection (7) sets out the tests the court must consider when deciding whether to vary
renew or discharge TEPOs made on sentencing (including by adding new prohibitions or
requirements) or any prohibitions or requirements within them Subsection (7)(a) applies the
tests for the making of a TEPO to any variation (including an increase or a relaxation of a
requirement or prohibition) renewal or addition Subsection (7)(b) applies those tests to any
discharge of a prohibition or requirement or of an order
91 Subsection (8) makes it clear that an order varying or renewing a TEPO is subject to the
requirements and prohibitions established by sections 16 and 17 in the same way as the original
order
92 Subsection (9) defines ―prosecutor for the purposes of this section
Section 19 Orders on application variation renewal and discharge
93 Section 19 makes provision about the variation renewal or discharge of TEPOs made on
application
94 Subsections (2) to (4) set out general powers in this context The person in respect of
whom the TEPO is made or the chief constable may apply to the sheriff for variation renewal or
discharge of a TEPO made on application Subsection (4)(b) makes provision about shrieval
jurisdiction in this connection Where the sheriff receives such an application the sheriff may
vary renew or discharge individual prohibitions or requirements or add new prohibitions or
requirements renew the order so that the period of the order itself is extended or discharge the
whole order
95 Subsection (5) provides that the sheriff must before making an order under this section
give an opportunity to make representations to the person in respect of whom the order is made
15
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
and the chief constable Subsection (6) provides that after taking into account any such
representations the sheriff may then make such an order as the sheriff thinks appropriate
96 Subsection (7) sets out the tests the sheriff must consider when deciding whether to vary
renew or discharge TEPOs on application (including by adding new prohibitions or
requirements) or any prohibitions or requirements within them Those tests reflect the tests for
the making of a TEPO
97 Subsection (8) provides that when determining an application under this section the
sheriff may consider conduct which occurred before this section comes into force
98 Subsection (9) makes it clear that an order varying or renewing a TEPO is subject to the
requirements and prohibitions established by sections 16 and 17 in the same way as the original
order
Section 20 Interim prevention orders
99 Section 20 gives power to a sheriff to make an interim TEPO while the main application
under section 14 is being determined The sheriff may make such an order if the sheriff
considers it just to do so (subsection (1)) and such an order may contain prohibitions or
requirements (or both) in relation to the person in respect of whom the order is to have effect
(subsection (2)) Those prohibitions or requirements may relate to things to be done or not done
in any part of Scotland or anywhere outwith Scotland (subsection (3))
100 Subsection (4) provides that an interim TEPO will only have effect for a fixed period
specified in the order and will cease to have effect on the determination of an application for a
TEPO under section 14 if that fixed period has not expired
101 Subsection (5) allows for an application to a sheriff in the sheriffdom of the sheriff who
made the interim TEPO for variation or discharge of that order Such an application may be
made by the person in respect of whom the order was made or the chief constable
Section 21 Appeals prevention orders
102 Section 21 provides for an appeals process in relation to TEPOs and interim TEPOs
103 Subsection (1) makes provision about TEPOs made on sentencing and any variation or
renewal of such a TEPO These are to be treated as sentences for the purposes of any appeal
104 Subsections (2) (3) and (4) make provision about appeals in relation to TEPOs made on
application any variation or renewal of such a TEPO and interim TEPOs The person in respect
of whom the order was made or the chief constable may appeal against any of these orders
16
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
Trafficking and exploitation risk orders
Section 22 Risk orders
105 Section 22 provides that the chief constable may apply to a sheriff for a trafficking and
exploitation risk order (TERO) against an adult A TERO differs from a TEPO in that it may be
made where a person has not previously been convicted of a trafficking or exploitation offence
but the personrsquos behaviour indicates a risk that others may be at harm as a result of that person
committing such an offence and intervention at an early stage is necessary to prevent that harm
A TEPO can only be made where a relevant offence has already been committed
106 Subsection (2) sets out the appropriate sheriff to whom an application for such an order
may be made
107 Subsection (3) sets out the tests for making a TERO The sheriff may only make an order
if satisfied that the person in respect of whom the order is sought has acted in a way which
means that there is a risk the person may commit a relevant trafficking or exploitation offence
(subsection (3)(a)) and it is necessary to make the prohibitions or requirements in the order for
the purpose of protecting persons generally or particular persons from the physical or
psychological harm which would be likely to occur if the person committed such an offence
(subsection (3)(b))
108 Subsection (4) provides that in assessing those tests the sheriff may consider conduct
which occurred before this section comes into force
Section 23 Contents of risk orders
109 Section 23 makes provision about the prohibitions or requirements (or both) that may be
contained in a TERO Each prohibition and requirement in a TERO is for a fixed period and the
order itself is for a fixed period The orders and the prohibitions or requirements may all be for
the same period However the Bill allows some requirements and prohibitions in the order to be
set for a shorter period if that is appropriate
110 Subsection (2) provides that both the order and any prohibition or requirement in the
order must have a specified fixed period of at least two years However this does not apply to a
prohibition on foreign travel or to an order that contains a prohibition on foreign travel and no
other prohibitions or requirements Such a prohibition (or an order containing only such a
prohibition) must be for a fixed period of no more than five years under section 24(1))
111 Subsection (4) provides that a TERO may prohibit the person in respect of whom the
order is made from doing things or require that person to do things Different prohibitions and
requirements may have effect for different periods
112 Subsection (5) provides that if the sheriff makes a TERO in relation to a person already
subject to such an order the earlier order will cease to have effect
17
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
Section 24 Prohibitions on foreign travel
113 Section 24 makes provision about prohibitions on foreign travel contained in a TERO
114 As noted above subsection (1) provides that a prohibition on foreign travel contained in a
TERO and any TERO which contains such a prohibition and no other prohibitions or
requirements must be for a fixed period of not more than five years
115 Subsection (2) defines a ―prohibition on foreign travel as a prohibition on travelling to
countries outwith the UK (either by reference to particular countries or generally)
116 Subsection (3)(a) determines that a prohibition on foreign travel varied or renewed under
section 25 may be varied or renewed for further fixed periods of no more than five years each
time Subsection (3)(b) requires that an order containing only a foreign travel restriction may be
renewed for up to that fixed period
117 Subsection (4) sets out the requirement on a person in respect of whom a TERO has been
made containing a prohibition on foreign travel to all countries outwith the United Kingdom to
surrender at a police station each passport that the person has Subsection (5) provides that any
passport surrendered must be returned as soon as is reasonably practicable after the person
ceases to be subject to a prohibition on foreign travel to all countries outwith the United
Kingdom Circumstances where this subsection would not apply are provided for at subsection
(6) for example where a passport has already been returned to the relevant authority
Section 25 Variation renewal and discharge of risk orders
118 Section 25 makes provision about the variation renewal or discharge of TEROs
119 Subsections (1) to (3) set out general powers in this context The person in respect of
whom the TERO is made or the chief constable may apply to the sheriff for variation renewal or
discharge of a TERO Subsection (3) makes provision about shrieval jurisdiction in this
connection Where the sheriff receives such an application the sheriff may vary renew or
discharge individual prohibitions or requirements or add new prohibitions or requirements
renew the whole order or discharge the whole order
120 Subsection (4) provides that the sheriff must before making an order under this section
give an opportunity to make representations to the person in respect of whom the order is made
and the chief constable Subsection (5) provides that after taking into account any such
representations the sheriff may then make any order the sheriff considers appropriate
121 Subsection (6) sets out the tests the sheriff must consider when deciding whether to vary
renew or discharge TEROs (including by adding new prohibitions or requirements) or any
prohibitions or requirements within them Subsection (6)(a) applies the tests for the making of a
TERO to any variation (including an increase or a relaxation of a requirement or prohibition)
renewal or addition Subsection (6)(b) applies those tests to any discharge of a prohibition or
requirement or of an order
18
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
Section 26 Interim risk orders
122 Section 26 provides that a sheriff may make an interim TERO while the main application
under section 22 is being determined The sheriff may make such an order if the sheriff
considers it just to do so (subsection (1)) and such an order may contain prohibitions or
requirements (or both) in relation to the person in respect of whom the order is to have effect
(subsection (2)) Those prohibitions or requirements may relate to things to be done or not done
in any part of Scotland or anywhere outwith Scotland (subsection (3))
123 Subsection (4) provides that an interim TERO will only have effect for a fixed period
specified in the order and will cease to have effect on the determination of the main application
if that fixed period has not already expired
124 Subsection (5) allows for an application for variation or discharge of an interim TERO
(or a requirement or prohibition in the order) to be made to a sheriff in the sheriffdom of the
sheriff who made the interim order by the person in respect of whom the order was made or the
chief constable (subsection (6))
Section 27 Appeals risk orders
125 Section 27 provides for an appeals process in relation to TEROs and interim TEROs and
any order varying or renewing such a TERO or interim TERO The person in respect of whom
the order was made or the chief constable may appeal against any of these orders
Offences and supplementary provision
Section 28 Offences
126 Section 28 makes provision about breach of TEPOs and TEROs
127 Subsections (1) and (2) provide that a person commits an offence if that person does
anything which the person is prohibited from doing by an order or fails to do anything which the
person is required to do by a TEPO or a TERO or an interim TEPO or TERO
128 Subsection (3) makes provision about penalties in relation to these offences A person
who commits an offence under this section is liable on summary conviction to imprisonment for
a term not exceeding 12 months or a fine not exceeding the statutory minimum (or both) On
conviction on indictment that person is liable to imprisonment for a term not exceeding five
years or a fine (or both)
Section 29 Enforcement of other UK orders
129 Section 29 provides that the Scottish Ministers may modify by regulations the list of
orders at section 28(2) so that a breach of those orders in Scotland constitutes an offence under
section 28(1) The orders which may be added are ―relevant UK orders Those are described in
subsection (2) as orders under the law of England and Wales or Northern Ireland which appear to
the Scottish Ministers to be equivalent or similar to TEPOs TEROs or interim TEPOs or
TEROs
19
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
Section 30 Interpretation of Part 4
130 Section 30 defines certain terms used in Part 4
PART 5 - STRATEGY AND REPORTING
Section 31 Trafficking and exploitation strategy
131 Section 31 places a duty on the Scottish Ministers to prepare a trafficking and
exploitation strategy The strategy under this section is a strategy which sets out such actions
arrangements and outcomes as the Scottish Ministers consider appropriate in relation to the
conduct which constitutes an offence under this Act
132 Subsection (3) lists some of the matters which may be set out in the strategy though that
list is not exhaustive Those matters include for example training and awareness raising in
relation to the detection and prevention of the conduct which constitutes an offence of human
trafficking or an offence under section 4
Section 32 Review and publication of strategy
133 Subsection (1) of section 32 provides that the strategy prepared under section 31 must be
reviewed by the Scottish Ministers every three years Following a review the Scottish Ministers
are required by subsection (2) to prepare a report on the review including an assessment of the
extent to which the strategy has been complied with and may prepare a revised strategy If a
decision is taken following such a review not to prepare a revised strategy the Scottish Ministers
must set out their reasons for that decision
134 Subsection (4) places a duty on the Scottish Ministers to consult with those likely to have
an interest in the strategy before preparing or reviewing the strategy Those likely to have an
interest include but are not limited to businesses support agencies faith based groups etc
135 Subsection (5) requires the Scottish Ministers to publish and lay before the Scottish
Parliament each strategy and report prepared under this section
Section 33 Duty to co-operate on strategy
136 Section 33 provides that Scottish public authorities as specified in regulations that may
be made by the Scottish Ministers must provide such information and assistance as the Scottish
Ministers may reasonably require and otherwise co-operate with the Scottish Ministers in the
preparation or review of the strategy A specified public authority could include for example
Police Scotland and local authorities
Section 34 Duty to notify and provide information about victims
137 Section 34 places a duty on specified Scottish public authorities to notify the chief
constable of the Police Service of Scotland about a person who is or appears to be a victim of
20
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
an offence under section 1 or section 4 This duty would not affect any other general right to
report information relating to crime
138 Subsection (2) requires that a notification relating to an adult is anonymised and does not
include any information that identifies the adult or enables the adult to be identified unless the
adult consents to that data being provided
139 Subsection (3) provides that the Scottish Ministers may by regulations specify the
Scottish public authorities who are to be subject to this duty and may make provision about the
information to be included in the notification The regulations will be subject to the negative
procedure
PART 6 ndash FINAL PROVISIONS
Section 35 Offences by bodies corporate etc
140 Section 35 provides that where an offence under the Bill was committed by a body
corporate or a Scottish partnership or other unincorporated association and it is proved that the
offence was committed with the consent or connivance of or was attributable to any neglect on
the part of a relevant individual or someone purporting to be acting in the capacity of a relevant
individual that individual as well as the body corporate partnership or unincorporated
association commits the offence and is liable to be proceeded against and punished accordingly
141 Subsection (2) defines what is meant by a ―relevant individual for the purpose of this
section
Section 36 Interpretation
142 Section 36 defines certain terms for the purposes of the Bill for example the definition
of ―travel
Section 37 Regulations
143 The Scottish Ministers are given various powers under this Bill to make regulations
Section 37 provides for the parliamentary procedure which is to be applicable in relation to each
of those powers
Section 38 Ancillary provision
144 Section 38 provides that the Scottish Ministers may make regulations containing such
incidental supplementary consequential transitional transitory or saving provision as they
consider necessary or expedient for the purposes of or in connection with the provisions of the
Bill
21
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
Section 39 Minor and consequential amendments
145 Section 39 introduces the schedule which makes minor amendments and amendments
consequential on the provisions of the Bill Given their replacement in Part 1 of the Bill the
schedule repeals the current offences in relation to human trafficking (section 22 of the 2003 Act
and section 4 of the 2004 Act) and slavery servitude and forced or compulsory labour (section
47 of the 2010 Act)
Section 40 Crown application
146 Section 40(1) provides that none of the provisions made by or under the Act are capable
of making the Crown criminally liable In accordance with subsection (2) enforcement of
offences against the Crown is to be done by the Scottish Ministers or any other public body or
office-holder with responsibility for enforcing the provision applying to the Court of Session for
a civil declarator of non-compliance This provision does not apply to persons in the public
service of the Crown
Section 41 Commencement
147 Section 41 provides that sections 36 37 38 40 41 and 42 of the Bill come into force on
the day after Royal Assent All other provisions are to come into force on a day appointed by
regulations made by the Scottish Ministers
22
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
FINANCIAL MEMORANDUM
INTRODUCTION
1 This document relates to the Human Trafficking and Exploitation (Scotland) Bill (―the
Bill) introduced in the Scottish Parliament on 11 December 2014 It has been prepared by the
Scottish Government to satisfy Rule 932 of the Parliamentrsquos Standing Orders It does not form
part of the Bill and has not been endorsed by the Parliament
2 The purpose of the Bill is to consolidate and strengthen the existing criminal law against
human trafficking and exploitation and enhance the status and support provided to victims Bill
provisions are in the following Partsmdash
Part 1 (Offences) includes provision on the creation of a single offence of human trafficking
for all types of exploitation of both adults and children establishes statutory aggravators of
human trafficking for use with other crimes and reframes the current standalone offence of
slavery servitude and forced or compulsory labour
Part 2 (Protection of victims) includes provision on prosecutorial guidelines for the
prosecution of victims and provision about the support and assistance to which adult victims
are entitled
Part 3 (Confiscation of property) includes provision on detention and forfeiture of property
and proceeds of crime
Part 4 (Trafficking and exploitation prevention and risk orders) includes provision on
two new preventive orders the trafficking and exploitation prevention order and the
trafficking and exploitation risk order
Part 5 (Strategy and reporting) includes provision on the trafficking and exploitation
strategy and the duty on specified Scottish public authorities to notify and provide
information about victims
Part 6 contains general and ancillary provisions
3 This Financial Memorandum considers the financial implications of each of the elements
of the Bill where relevant
BACKGROUND
4 Before considering the financial implications associated with the specific provisions
within the Bill it is important to consider both the current estimated extent of human trafficking
in Scotland and existing activity by public bodies and others in response to this issue
23
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
Extent of human trafficking in Scotland
5 Human trafficking is by its nature a hidden crime The National Referral Mechanism
(NRM) is the process set up by the UK Government to identify and support victims of trafficking
in the UK The NRM is also the mechanism by which the UK Human Trafficking Centre
collects data about potential victims of trafficking Information about suspected child and adult
victims of human trafficking is referred by relevant ―first responder organisations such as the
police and third sector bodies for example Migrant Help and the Trafficking Awareness Raising
Alliance (TARA) Referrals relate to victims trafficked from outside and within the UK The
table below summarises the most recent available information on NRM referrals from first
responder organisations in Scotland
Table 1 Recent referrals from first responders in Scotland of potential child and adult
human trafficking victims to the National Referral Mechanism
2012 2013
Adults 67 77
Children 29 22
Total 96 99
of all UK Referrals 8 6
Source National Crime Agency National Referral Mechanism Statistics 2012 and 20131
6 Various reports confirm that the number of victims referred through the NRM is likely to
be a significant underestimate of the actual number of potential victims of trafficking For
example the Equality and Human Rights Commission Inquiry into Human Trafficking in
Scotland (2011) noted ―estimates of identified potential victims do not reflect what is likely to be
a much greater number of unidentified victims2
7 The UK National Crime Agency (NCA) Strategic Assessment of the Nature and Scale of
Human Trafficking in the UK3 aims to provide an indication of the nature and scale of human
trafficking beyond the number of referrals to the NRM The assessment is produced using
intelligence held by the NCA the NRM and intelligence information collected from agencies
such as Police Scotland the Home Office Gangmastersrsquo Licensing Authority and non-
government organisations The assessment removes information of potential victims referred to
the NRM who have received a negative ―reasonable grounds or ―conclusive decision (ie it
has been confirmed that they are not victims of trafficking) or duplicate information about
individuals (ie the same person has been referred more than once or by more than one agency)
to show a total number of ―unique potential victims of trafficking The NCA Assessment for
2013 indicated that there were significantly more unique potential victims of human trafficking
identified across the UK than the numbers referred to the NRM even excluding those that
received a negative decision and that the number of unique victims was increasing
1 httpwwwnationalcrimeagencygovukpublications399-nca-strategic-assessment-the-nature-and-scale-of-
human-trafficking-in-2013file 2httpwwwequalityhumanrightscomsitesdefaultfilesdocumentsScotlandHuman_Trafficking_in_Scotland_inq
uiry_into_human_trafficking_in_scotland-full-report_pdf_pdf 3 httpwwwnationalcrimeagencygovukpublications399-nca-strategic-assessment-the-nature-and-scale-of-
human-trafficking-in-2013file
24
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
Table 2 Comparison of recent UK referrals to the National Referral Mechanism and the
National Crime Agency Strategic Assessment of the Scale of Human Trafficking
2012 2013 Change
Referred to NRM 778 1095 +41
NCA Assessment No of
Unique Potential Victims
Identified
2255 2744 +22
Source National Crime Agency Strategic Assessment of the Nature and Scale of Human
Trafficking in the UK4
8 For Scotland the NCA Assessment for 2013 identified 55 unique potential victims of
human trafficking compared with 99 referrals to the NRM It is not known why in contrast to
the position in England and Wales the NCA Assessment for Scotland is lower than the NRM
referrals although it will exclude potential victims who received a negative conclusive decision
and duplicate referrals However these numbers must be treated with significant caution There
remains strong conviction amongst law enforcement bodies and victims organisations that there
are more victims of trafficking than are identified and that even once identified victims are
often unwilling to engage with authorities or identify themselves as having been trafficked For
the purpose of this Financial Memorandum the Scottish Government has accepted the NCA
assessment that there are likely to be between two and three times as many potential victims of
trafficking as are currently identified through the NRM This assessment is based on the Scottish
Governmentrsquos best understanding of the hidden nature of this crime and the known reluctance of
some victims to identify their trafficked status or to engage with public authorities
Criminal justice response to human trafficking and exploitation
9 There have been relatively few prosecutions and convictions for human trafficking
offences under existing criminal justice legislationmdash
The Criminal Justice (Scotland) Act 20035 (―the 2003 Act) provides for offences of
trafficking for the purposes of exploitation by way of prostitution
The Asylum and Immigration (Treatment of Claimants etc) Act 20046 (―the 2004
Act) provides for offences of trafficking for labour and other forms of exploitation
The Criminal Justice and Licensing (Scotland) Act 20107 (―the 2010 Act) amended
and extended the 2003 and 2004 Acts and created a standalone offence of holding
someone in slavery or servitude or requiring a person to perform forced or
compulsory labour
10 The first successful convictions for human trafficking in Scotland were in 2011 under
section 22 of the 2003 Act for trafficking for the purposes of prostitution During 2013 a total of
four people were convicted of human trafficking offences - one person under section 22 of the
2003 Act and three people under section 4 of the 2004 Act for trafficking for forced marriage
4 httpwwwnationalcrimeagencygovukpublications399-nca-strategic-assessment-the-nature-and-scale-of-
human-trafficking-in-2013file 5 httpwwwlegislationgovukasp20037
6 httpwwwlegislationgovukukpga200419
7 httpwwwlegislationgovukasp201013
25
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
The average custodial sentence length for those convicted of trafficking offences was 847 days
(just under two years and four months) as well as any confiscation order imposed
11 Although the number of convictions for trafficking offences has been small police and
the Crown Office and Procurator Fiscal Service (COPFS) have confirmed that even though it is
not possible to always prove the trafficking offence where a credible suspicion exists people
suspected of involvement with trafficking can and often are prosecuted and convicted for other
crimes such as crimes associated with prostitution forced marriage immigration offences and
drugs offences etc
12 Police Scotland has established a dedicated National Human Trafficking Unit to enhance
the police response to human trafficking through awareness raising intelligence gathering
training and providing divisions with advice and specialist knowledge The COPFS has
appointed dedicated expert fiscals to prosecute human trafficking offences
Support for victims of trafficking
13 The Scottish Government currently allocates direct grant funding to non-government
organisations to provide and facilitate immediate support and assistance to the adult victims of
human trafficking This support can include immediate safe accommodation psychological
support assistance in accessing medical treatment material assistance interpretation and
translation and assistance either with repatriation or securing longer-term access to mainstream
services and support such as welfare benefits and housing The provision of support and
assistance is not conditional on the potential victim being willing to participate in the criminal
justice process Under the NRM victims of trafficking are guaranteed ―a recovery and reflection
period to recover from their experience escape the influence of those alleged to have trafficked
or exploited them and consider whether to engage with authorities The Council of Europe
Convention on Action Against Trafficking in Human Beings8 provides for a reflection period of
at least 30 days for all trafficked victims when there are reasonable grounds to believe that the
person concerned is a victim The current minimum recovery and reflection period in Scotland
and the rest of the UK is 45 days
14 In 2013-14 total grant funding of pound723000 was provided by the Scottish Government
towards the costs of ensuring immediate support and assistance for the adult victims and
potential victims of trafficking in Scotland This funding was provided through two non-
government organisationsmdash
the TARA Service which works with women aged 18 years and over across
Scotland where there are concerns that they have been trafficked for commercial
sexual exploitation and
Migrant Help a UK-wide organisation providing support and advice services to
migrants including new asylum claimants refugees EU nationals etc
15 Support for the child victims of trafficking is co-ordinated by local authorities as part of
their child protection arrangements and in line with the policy intention that children remain
8 httpwwwcoeinttdghlmonitoringtraffickingdocsconvntnCETS197_enasp
26
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
children first and that their needs should be treated accordingly The Scottish Government has
produced a toolkit for agencies working with children and young people to ensure that staff are
able to identify trafficked children and make appropriate referrals so that victims can receive
protection and support The toolkit is designed to be used in conjunction with National Child
Protection Guidance9 which was first published in 2010 and refreshed in 2014 and other
relevant national and international guidance Information about current expenditure on child
victims of trafficking is not recorded separately from information about wider expenditure on
child protection services
Lord Advocate guidance on prosecution policy
16 In his letter of 21 January 2013 to the Scottish Parliament European and External
Relations Committee10
the Lord Advocate set out the current arrangements for fiscals
considering the prosecution of a confirmed or potential victim of human trafficking where it is
believed or claimed that the crime was committed as a direct consequence of the personrsquos
trafficked status The letter set out the basis for the current Lord Advocatersquos guidance to
prosecutors including the presumption against the prosecution of a credible trafficking victim
for crimes that arise as a consequence of the victimrsquos trafficked status
Human trafficking strategic approach awareness raising and training
17 The first Scottish Human Trafficking Summit was hosted by the Cabinet Secretary for
Justice in October 2012 The summit brought together key law enforcement public private and
third sector organisations with an interest in human trafficking Following the summit a number
of strategic collaborative actions were agreed and progressed including with reference to
awareness raising and training for frontline staff data collection and analysis identification care
and support for both child and adult victims of trafficking and enhancing enforcement
18 One specific workstream related to awareness raising and training of front-line staff
likely to come into contact with trafficking victims or potential instances of trafficking
Following the summit Police Scotland with support from the Scottish Government and others
prepared published and circulated widely an awareness raising leaflet ndash Reading the Signs11
ndash to
assist police officers and staff in other front line posts in identifying the signs of potential
trafficking The Scottish Government also participated with the UK Government in a UK-wide
public awareness raising campaign about modern slavery and trafficking
19 In addition to general awareness raising specific training material was prepared for key
front-line staff For example all police officers were required to undertake an e-learning course
on human trafficking A special leaflet for health workers was prepared and circulated by NHS
Health Scotland An e-learning module for health workers about their role in identifying and
9 httpwwwscotlandgovukPublications2014053052
10httpwwwscottishparliamentukS3_EuropeanandExternalRelationsCommitteeGeneral20DocumentsLetterfro
mTheLordAdvocatepdf 11
httpwwwscotlandpoliceukassetspdf174967human-traffickingview=Standard
27
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
responding to victims of trafficking was made available through the National Gender Based
Violence and Health Programme12
IMPACT OF SPECIFIC PROVISIONS
PART 1 - OFFENCES
Single trafficking offence
20 The Bill establishes a new single offence of human trafficking for all types of
exploitation for both adults and children replacing existing separate criminal offences (see
paragraph 9 above) As noted above to date there have been relatively small numbers of
prosecutions under existing trafficking offences
21 The maximum penalty for conviction on indictment for the single trafficking offence will
be life imprisonment compared with a maximum of 14 years for the current separate offences
Although it will be for the court to decide how to sentence people convicted under the new single
offence in any given case it is likely that the availability of a higher maximum sentence will
have cost implications for the Scottish Prison Service (SPS)
Revised slavery servitude and forced labour offence
22 The Bill will also repeal and replace the existing exploitation offence within section 47 of
the 2010 Act which criminalises holding someone in slavery or servitude or requiring them to
perform compulsory or forced labour The offence will be revised and strengthened to allow the
court to consider in assessing whether a person has been a victim of an offence the victimrsquos
characteristics such as age physical or mental illness disability or where relevant family
relationships The maximum penalty for the offence will be increased from 14 years for the
current offence to life imprisonment for a conviction on indictment
Statutory aggravators
23 The Bill makes provision for statutory aggravators which apply in cases where an
accused person commits an offence connected with human trafficking and for when the offence
is committed in connection with the accusedrsquos position as a public official The court must take
the aggravation into account in determining the appropriate sentence if it is proved that the
offence is aggravated in this way The statutory aggravator is not anticipated to have any
substantial financial implications for public private or third sector bodies or for individuals
Costs on the Scottish Administration
24 Consolidating and clarifying the existing criminal law on trafficking and exploitation
alongside other measures arising from the Bill and the trafficking and exploitation strategy
including training and awareness raising and support for victims should increase the potential
for successful investigations prosecutions and convictions of human trafficking and exploitation
offences There have been six successful prosecutions for a specific trafficking offence to date in
Scotland with an average custodial sentence length of two years and four months against a
12
httpwwwgbvscotnhsuk
28
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
maximum possible sentence of 14 years The maximum number of prosecutions in any one year
was four individuals in two separate cases
25 Police and prosecutors already have in place specialist resources for investigating and
prosecuting human trafficking and exploitation offences and these provisions will not add to
these costs Law enforcement agencies have confirmed that whilst the number of prosecutions
for specific trafficking offences has been low where victims are identified but are unwilling to
testify individuals suspected of trafficking and exploitation will be prosecuted in court for other
related offences The Lord Advocate has identified that ―If we donrsquot have the evidence [to
prosecute for a specific human trafficking offence] we prosecute for fraud ID theft or asylum
and immigration offences13
26 The Scottish Government does not anticipate therefore significant additional cost
implications for law enforcement agencies or courts as cases will often proceed with a
trafficking offence alongside or in place of other related offences For the same reason the
Scottish Government does not anticipate significant additional cost on the Scottish Legal Aid
Board (SLAB) However if it is assumed that the number of successful trials proceeding in any
single year doubles from two to four there would be some additional costs on the COPFS the
Scottish Court Service (SCS) and SLAB based on the average unit costs for cases proceeded
either through Sheriff Court Solemn procedure or through the High Court These estimated costs
depending on whether cases are proceeded through the High Court or Sheriff Court solemn
procedure are illustrated in the table below
Table 3 Estimated unit costs of additional trial procedures through either High Court or
Sheriff Court solemn procedure (pound000)
Average prosecution
costs per procedure
(COPFS)
Average court costs
per procedure (SCS)
Average legal aid
costs per procedure
(SLAB)
Sheriff Court solemn
procedure (pound000) pound49 pound19 pound16
High Court (pound000) pound556 pound90 pound135
Estimated average
costs of 2 additional
trial procedures 4
accused per annum
(pound000)
pound99-pound1112 pound38-pound180 pound64-pound540
Source costs of the Criminal Justice System in Scotland Dataset (2013)14
27 There will also be costs to the SPS both through any increase in the number of successful
convictions for trafficking and exploitation offences and an anticipated increase in the average
length of custodial sentence for these crimes It is not possible to know for certain the total
13
httpwwwdailyrecordcouknewsscottish-newsonly-three-successful-prosecutions-brought-4457684 14httpwwwscotlandgovukTopicsStatisticsBrowseCrimeJusticePublicationscostcrimjustsc
otcostcrimjustdatasethttpwwwscotlandgovukTopicsStatisticsBrowseCrimeJusticePublicationscostcrimj
ustscotcostcrimjustdataset
29
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
number of future convictions or what sentencing decisions might be taken by courts in individual
cases
28 The table below illustrates the potential cost implications of either maintaining or
increasing the current maximum number of convictions in any individual year from four to eight
convictions For the purpose of the calculation it is assumed that the average custodial sentence
length for trafficking and exploitation offences will increase from two years and four months
(classified as a short-term sentence) to over four years (classified as a long-term sentence) as
increasing the maximum sentence to life imprisonment is anticipated to increase the average
sentence for a trafficking offence The estimated average annual cost of a prison place based on
SPS figures is pound42500 Taking account of the current early release arrangements for long-term
prisoners and the overlapping of individual sentences would result in an estimated increase of 8
to 21 total prison places each year after four years ndash ie with an additional four people receiving
custodial sentences each year and released by the Parole Board at the halfway point of their
sentence or automatically at the two-thirds point The total costs to the SPS will be within a
range of pound340000 to pound890000 These costs will fit within the overall budget costs to the SPS
As at 17 October 2014 there were 7731 people in custody in Scotland An additional 21 places
accounts for 03 of the total prison population
Table 4 Estimated range of costs to the Scottish Prison Service from increasing the
number and average length of successful prosecutions for trafficking offences
Year 1 Year 2 Year 3 Year 4
Additional Prison places 0-4 4-12 8-17 8-21
Additional Cost (pound000) pound0-pound170 pound170- pound510 pound340-pound720 pound340-pound890
Table 5 Estimated range of combined costs for trial procedures and prison places
Year 1 Year 2 Year 3 Year 4
Additional Cost (pound000) pound20-pound353 pound190- pound693 pound360-pound900 pound360-pound1073
Costs on other bodies individuals and businesses
29 There will be no new costs falling on other bodies individuals and businesses as a
consequence of these sections but see the section below with reference to victim support
Costs on local authorities
30 There will be no new costs falling on local authorities as a consequence of these specific
sections
PART 2 - PROTECTION OF VICTIMS
Duty on the Lord Advocate to publish guidance about the prosecution of credible trafficking and
exploitation victims who have committed offences
Costs on the Scottish Administration
31 As noted above the Lord Advocate already prepares and publishes guidance to fiscals
about the prosecution of credible victims of human trafficking for crimes committed as a direct
30
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
consequence of their trafficking status The requirement to publish such guidance would in
future be statutory However there will be no new costs on the Scottish Government or the
COPFS as a consequence of placing the requirement for the Lord Advocate to issue this
guidance on a statutory basis
Costs on other bodies individuals and businesses
32 There will be no new costs falling on other bodies individuals and businesses as a
consequence of these sections
Costs on local authorities
33 There will be no new costs falling on local authorities as a consequence of these sections
Ensure the rights of victims to access and support
34 The Bill will place a statutory duty on the Scottish Ministers to secure the provision of
relevant immediate support and recovery services for adult victims of trafficking subject to an
assessment of need The Bill will specify those victims or potential victims entitled to support
and the minimum time periods during which such services should be provided Specifically the
Bill will require Ministers to provide support and assistance based on each individualrsquos assessed
needs during the recovery and reflection period (currently 45 days) during which the
individualrsquos trafficking status is determined The Bill specifies minimum support and assistance
that should be considered as part of the assessment including access to housing treatment
interpretation services etc The Scottish Ministers have the flexibility to provide support and
assistance outwith the specified reflection and recovery period where this is considered
appropriate
35 As noted above the Scottish Ministers already provide grant funding totalling pound723000
to third sector organisations to assist identified adult potential victims of trafficking Provision of
support to adult victims will be placed on a statutory basis The number of adult potential victims
of trafficking referred through the NRM during 2013 was 77 although not all of these will have
requested assistance or received the full range of support services It is assumed that other
actions arising from the Bill including the single offence and publication of the trafficking and
exploitation strategy will result over time in an increase in identified victims and requests for
assistance and support
Costs on the Scottish Administration
36 The Scottish Government anticipates that improved awareness raising and training of
front-line staff will result in an increase in the number of victims identified over time It is not
possible to know how quickly this improvement will be achieved However between 2012 and
2013 the number of potential identified victims across the UK identified through the NCA
strategic assessment and NRM increased by 22 and 41 respectively Given the need for
awareness raising and training to impact the Scottish Government does not anticipate a similar
scale of increase in the immediate term but the Government considers it reasonable to anticipate
a possible increase of between 10 and 20 per annum in the overall number of requests for
assistance and support each year over the next four years Assuming a similar mix of needs as
31
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
current victims the increased costs to the Scottish Government on top of existing funding
would range between pound290000 to pound580000 per annum by year four
Table 6 Estimated range of costs increases for victim support and assistance (pound000)
Year 1 Year 2 Year 3 Year 4
Additional Cost (pound000) pound0-pound140 pound140-pound280 pound220-pound430 pound290-pound580
Costs on other bodies individuals and businesses
37 There will be no additional costs on other public bodies individuals or businesses
associated with these specific provisions There will be no direct additional costs falling on third
sector organisations as a consequence of the specific provisions It is likely however that all or
part of the additional funding identified above will be directed by the Scottish Government
through relevant third sector organisations with the expertise to provide immediate support and
protection to victims
Costs on local authorities
38 The Bill creates no new legislative requirements for the delivery of childrenrsquos services
recognising that this already exists It is therefore not anticipated that the Bill will result in any
quantifiable additional costs on local authorities or other public bodies as a result of support for
child victims Child victims of trafficking are supported as part of the Getting It Right for Every
Child (GIRFEC) approach any child whether identified as trafficked or not will be assessed on
the basis of its needs It is anticipated that as a consequence of the strategy (for which the Bill
provides) that more children may be identified as trafficked It is noted however that various
reports including most recently the UK Governmentrsquos NRM Review Report15
have found that
children who are already receiving support from relevant authorities in the UK are often not
identified as trafficked victims because of lack of awareness of the referral process It may be
that actions arising from the development of the strategy and dialogue with stakeholders will
give rise to additional activity or costs with reference to child victims of trafficking but these are
not known and cannot be estimated at this time
PART 3 - CONFISCATION OF PROPERTY
39 The Bill will provide police with powers to detain the property such as cars boats etc of
a person arrested for a trafficking offence This power will be exercised at the time of arrest and
is not expected to impose any additional costs on the police or others
Costs on the Scottish Administration
40 There will be no additional costs on the Scottish Government as a result of these
provisions Individuals can apply to the court to have vehicles ships or aircraft released from
detention This will be considered as part of the overall case and will not add to the costs to the
criminal justice system
15
httpsnrmhomeofficegovuk
32
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
Costs on other bodies individuals and businesses
41 There will be no additional costs on other public bodies individuals or businesses
including Police Scotland as a result of these specific provisions
Costs on local authorities
42 There will be no additional costs on local authorities as a result of these specific
provisions
PART 4 - TRAFFICKING AND EXPLOITATION PREVENTION AND RISK ORDERS
Introduce new measures to disrupt and prevent trafficking and exploitation
43 The Bill will introduce two new civil orders and associated interim orders to assist in
preventing trafficking and exploitation Trafficking and Exploitation Prevention Orders (TEPOs)
and Trafficking and Exploitation Risk Orders (TEROs) Where an individual has been convicted
of a trafficking or exploitation offence or an offence with a statutory trafficking aggravator a
TEPO may be imposed by a court where there is a risk that that individual may commit a further
human trafficking offence and it is necessary to make the order to protect people from the
physical or psychological harm which might occur if such an offence were committed The
TEPO will prevent the individual from engaging in activities described in the order Where a
person has not been convicted of a trafficking or exploitation offence but a court considers that
the person presents a significant risk of harm to others through the individual committing a
trafficking or exploitation offence the court can impose a TERO restricting specific activities or
imposing requirements These orders will be civil but breach of an order will constitute a
criminal offence with a maximum penalty of five years in prison available to the court
44 The Bill will categorise the trafficking and exploitation offences as lifestyle offences in
order to automatically trigger provisions within the Proceeds of Crime Act 2002 (―the 2002
Act) The definition of an offence as a ―lifestyle offence allows for proceedings under the
2002 Act to confiscate assets or monies from the individual convicted of the offence
Costs on the Scottish Administration
45 The purpose of TEPOs and TEROs is to prevent criminal activity associated with
trafficking and exploitation from arising There will be some cost implications for law
enforcement organisations which will need to monitor the terms of any order imposed by the
courts However these will be offset by the savings made from being able to intervene at an
early stage of criminality if an order has been breached For the equivalent civil orders within the
UK Modern Slavery Bill the UK Government has estimated potential net savings of between
pound130000 and pound1090000 per annum The Scottish Government has not incorporated any
savings for the purpose of Scottish legislation but expects the costs of implementing TEPOs and
TEROs and detention powers to be at least cost neutral for the Scottish Administration and other
public bodies
33
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
46 The Bill will give courts powers to impose a TEPO at the time of sentencing There will
be no immediate additional costs for the courts or COPFS associated with TEPOs imposed as
part of sentencing The Chief Constable of Police Scotland will also be able to apply to the court
for a TEPO to be imposed on a relevant offender previously convicted of a trafficking offence
There will be costs to Police Scotland in making the application and to the SCS and to SLAB in
considering the application As there have been only six previous convictions for trafficking
offences in Scotland the Scottish Government expects the number of applications for TEPOs for
previous convictions to be small one-off and will not add to the overall costs of the criminal
justice system The Chief Constable of Police Scotland can also apply to the court for a TERO
against an individual where it is considered that that individual is likely to commit a trafficking
offence
47 Looking at the equivalent costs for similar civil orders eg Sexual Offences Prevention
Orders the total costs to the SCS the COPFS and SLAB of applying for a TERO or post-
sentencing TEPO are estimated at between pound1000 and pound6000 per order It is not possible to
know how many TEPOs or TEROs might be applied for but assuming a number half the level of
the estimated maximum number of potential convictions for trafficking offences each year (four
to eight) would give estimated costs of between pound2000 (2 x pound1000) and pound24000 (4 x pound6000)
per annum
48 There will be costs to Police Scotland in monitoring TEPOs and TEROs whether
imposed at the time of sentence or by application but this will sit alongside Police Scotlandrsquos
existing crime prevention and investigative responsibilities and is not expected to add to
manpower costs
49 In addition to the costs of imposing and monitoring TEPOs and TEROs there will be
costs associated with prosecuting a breach of a TEPO or TERO Analysis in England and Wales
indicates that breaches of equivalent Serious Crime Prevention Orders are relatively low
Assuming one breach per annum the total combined costs to the COPFS the SCS and SLAB
would be between pound8400 and pound78100 per annum (see the combined costs for either sheriff
court or High Court procedures set out in Table 3 above) Assuming a maximum sentence of
five years the costs to the SPS for additional prison places would be between pound85000 and
pound127500 per annum (ie the pound42500 average costs of a prison place times either two or three
places depending on whether offenders are released early at the halfway or two-thirds point of
their sentence)
50 It is important to remember however that the purpose of TEPOs and TEROs is to
prevent further trafficking and exploitation offences occurring A TEPO or TERO will only be
imposed where a court considers that there is a credible risk of an individual committing such a
crime Any costs associated with the imposition and breach of TEPOs and TEROs needs to be
offset against the potential costs of prosecutions If each TEPO or TERO prevents the costs of a
conviction for an offence as set out in Part 1 above the costs to the Scottish Administration
would be at least cost neutral in terms of saved court and prison places expenditure
34
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
Costs on other bodies individuals and businesses
51 There will be no costs on other bodies businesses or other individuals as a consequence
of these sections
Costs on local authorities
52 There will be no new costs on local authorities as a consequence of these sections
PART 5 - STRATEGY AND REPORTING
Ensure a strategic cross-agency approach to tackling trafficking
53 The Bill places a duty on the Scottish Ministers to prepare publish and regularly review
and update a trafficking and exploitation strategy to assist in ensuring a co-ordinated and
strategic approach to this issue The provisions place a duty on Ministers to consult with such
organisations and individuals as they consider to have a relevant interest in the issues of human
trafficking and exploitation The Bill places a duty on relevant public bodies to be named in
regulations to assist in the preparation and review of the strategy
54 The Bill will place a duty on relevant public authorities to provide anonymised data about
potential human trafficking and exploitation victims to Police Scotland
Costs on the Scottish Administration
55 Activity arising from these provisions within the Bill will build on the activity and
current resources already committed to this area of work
56 Based on similar activities the estimated additional costs to the Scottish Ministers of
preparing and reviewing a trafficking and exploitation strategy will be approximately pound25000
every three years Alongside the preparation and publication of the strategy the Scottish
Ministers would also propose to support additional awareness raising and training activity to
build on the existing awareness raising and training activity already undertaken by relevant
organisations including the NHS Police Scotland and COPFS Consideration would be given to
how best to co-ordinate these resources alongside existing expenditure and activity For the
purposes of the Financial Memorandum and based on current activity additional costs on top of
existing activity are estimated at approximately pound100000 to pound250000 per annum over the first
four years of the Bill This is based on the best estimated costs of preparing and publishing
publicity and guidance material averaged over a number of years The exact costs will depend
on decisions taken in dialogue with stakeholders as part of the preparation of the strategy
57 The Scottish Government anticipates that the costs to relevant public authorities of
providing anonymised data about potential human trafficking victims to Police Scotland will be
marginal Costs to Police Scotland of collating this data will form part of their existing
intelligence gathering activity
35
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
Costs on other bodies individuals and businesses
58 There will be some costs on other bodies individuals and businesses in engaging with the
Scottish Ministers in the preparation and publication of the Strategy For business and
individuals this will be voluntary depending on their willingness to engage For public bodies
their level of engagement will depend on the relevance of the issue of trafficking and
exploitation to their work and their potential contribution to combating this behaviour Any
additional costs are expected to fit within or sit alongside their existing responsibilities for
example with reference to promoting and ensuring equalities and the application of human
rights obligations
Costs on local authorities
59 There will be costs on local authorities associated with engaging in the preparation and
review of the trafficking and exploitation strategy and in awareness raising and training of front-
line staff The additional costs should be marginal on top of the existing guidance and activity
already in place with reference to the identification and support of potential child victims of
trafficking The aim will be to minimise costs for other front-line local authority staff by
adapting the general awareness raising and training materials described above
SUMMARY
60 The table below provides a summary of the costs of each element of the Bill as described
above
Table 7 Summary table of costs for each aspect of the Bill (pound000)
Year 1 Year 2 Year 3 Year 4
Clarifying amp
Strengthening the
Criminal Law ndash Para 28 pound20-pound353 pound190- pound693 pound360-pound900 pound360-pound1073
Ensure the rights of
victims to access and
support - Para 36 pound70-pound140 pound140-pound280 pound220-pound430 pound290-pound580
Introduce new measures to
disrupt and prevent
trafficking pound016
pound0 pound0 pound0
Ensure a strategic cross
agency approach to
tackling trafficking ndash Para
56 pound125-pound275 pound100-pound250 pound100-pound250 pound125-pound275
TOTAL pound215-pound768 pound430-pound1223 pound680-pound1580 pound775-pound1928
16
The Scottish Government considers that the overall costs are at least cost neutral ndash see paragraphs 45 to 50
36
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December
SCOTTISH GOVERNMENT STATEMENT ON LEGISLATIVE
COMPETENCE
On 11 December 2014 the Cabinet Secretary for Justice (Michael Matheson MSP) made the
following statement
―In my view the provisions of the Human Trafficking and Exploitation (Scotland) Bill
would be within the legislative competence of the Scottish Parliament
mdashmdashmdashmdashmdashmdashmdashmdashmdashmdash
PRESIDING OFFICERrsquoS STATEMENT ON LEGISLATIVE
COMPETENCE
On 11 December 2014 the Presiding Officer (Rt Hon Tricia Marwick MSP) made the following
statement
―In my view the provisions of the Human Trafficking and Exploitation (Scotland) Bill
would be within the legislative competence of the Scottish Parliament
37
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December
SP Bill 57ndashEN Session 4 (2014)
HUMAN TRAFFICKING AND EXPLOITATION
(SCOTLAND) BILL
EXPLANATORY NOTES
(AND OTHER ACCOMPANYING DOCUMENTS)
Parliamentary copyright Scottish Parliamentary Corporate Body
Information on the Scottish Parliamentrsquos copyright policy can be found on the website -
wwwscottishparliamentuk
Produced and published in Scotland on behalf of the Scottish Parliamentary Corporate Body by APS
Group Scotland
ISBN 978-1-78534-569-2
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
Section 16 Contents of prevention orders
77 Section 16 makes provision about the prohibitions or requirements (or both) that may be
contained in a TEPO Each prohibition and requirement in a TEPO is for a fixed period and the
order itself is for a fixed period The order and the prohibitions and requirements may all be for
the same period However the Bill allows some requirements and prohibitions in the order to be
set for a period shorter than that of the order if that is appropriate
78 Subsection (2) provides that both the order and any prohibition or requirement in the
order must have a specified fixed period of at least five years The only exception to that
requirement relates to a prohibition on foreign travel and an order containing only a prohibition
on foreign travel (which is dealt with in section 17) and relates to a period of not more than five
years Subsection (4) provides that a TEPO may prohibit the person in respect of whom the
order is made from doing things or require that person to do things Different prohibitions and
requirements may have effect for different periods
79 Subsection (5) provides that if the court makes a TEPO in respect of a person already
subject to such an order the earlier order will cease to have effect
80 Subsection (6) defines what is meant by ―the court for the purposes of the section
Section 17 Prohibitions on foreign travel
81 Section 17 makes provision about prohibitions on foreign travel in TEPOs
82 Subsection (1) provides that a prohibition on foreign travel contained in a TEPO and
any TEPO which contains such a prohibition and no other prohibitions or requirements must be
for a fixed period of not more than five years
83 Subsection (2) defines a prohibition on foreign travel as a prohibition on travelling to
countries outside the UK (either by reference to particular countries or generally)
84 Subsection (3)(a) determines that a prohibition on foreign travel varied or renewed by
application under section 18 or 19 may be varied or renewed for further fixed periods of no more
than five years each time Subsection (3)(b) requires that an order containing only a foreign
travel restriction may be renewed for up to that fixed period
85 Subsection (4) sets out the requirement on a person in respect of whom a TEPO
containing a prohibition on foreign travel to all countries outwith the United Kingdom has been
made to surrender at a police station each passport that the person has
86 Subsection (5) provides that any passport surrendered must be returned as soon as is
reasonably practicable after the person ceases to be subject to such a prohibition on foreign
travel Circumstances where this subsection would not apply are provided for at subsection (6)
for example where a passport has already been returned to the relevant authority
14
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
Section 18 Orders on sentencing variation renewal and discharge
87 Section 18 makes provision about varying renewing and discharging TEPOs made on
sentencing
88 Subsections (2) to (4) set out general powers in this context The person in respect of
whom the TEPO is made or the prosecutor may apply for variation renewal or discharge of such
a TEPO That application is to be made to the High Court where that court made the order and
to the sheriff otherwise Subsection (4)(b) makes provision about shrieval jurisdiction in this
connection Where the relevant court receives such an application it may vary renew or
discharge individual prohibitions or requirements or add new prohibitions or requirements it
may renew the whole order or it may discharge the whole order
89 Subsection (5) provides that the court must before making an order under this section
give an opportunity to make representations to the person in respect of whom the order is made
the prosecutor and the chief constable Subsection (6) provides that after taking into account
any such representations the court may then make such order as it thinks appropriate
90 Subsection (7) sets out the tests the court must consider when deciding whether to vary
renew or discharge TEPOs made on sentencing (including by adding new prohibitions or
requirements) or any prohibitions or requirements within them Subsection (7)(a) applies the
tests for the making of a TEPO to any variation (including an increase or a relaxation of a
requirement or prohibition) renewal or addition Subsection (7)(b) applies those tests to any
discharge of a prohibition or requirement or of an order
91 Subsection (8) makes it clear that an order varying or renewing a TEPO is subject to the
requirements and prohibitions established by sections 16 and 17 in the same way as the original
order
92 Subsection (9) defines ―prosecutor for the purposes of this section
Section 19 Orders on application variation renewal and discharge
93 Section 19 makes provision about the variation renewal or discharge of TEPOs made on
application
94 Subsections (2) to (4) set out general powers in this context The person in respect of
whom the TEPO is made or the chief constable may apply to the sheriff for variation renewal or
discharge of a TEPO made on application Subsection (4)(b) makes provision about shrieval
jurisdiction in this connection Where the sheriff receives such an application the sheriff may
vary renew or discharge individual prohibitions or requirements or add new prohibitions or
requirements renew the order so that the period of the order itself is extended or discharge the
whole order
95 Subsection (5) provides that the sheriff must before making an order under this section
give an opportunity to make representations to the person in respect of whom the order is made
15
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
and the chief constable Subsection (6) provides that after taking into account any such
representations the sheriff may then make such an order as the sheriff thinks appropriate
96 Subsection (7) sets out the tests the sheriff must consider when deciding whether to vary
renew or discharge TEPOs on application (including by adding new prohibitions or
requirements) or any prohibitions or requirements within them Those tests reflect the tests for
the making of a TEPO
97 Subsection (8) provides that when determining an application under this section the
sheriff may consider conduct which occurred before this section comes into force
98 Subsection (9) makes it clear that an order varying or renewing a TEPO is subject to the
requirements and prohibitions established by sections 16 and 17 in the same way as the original
order
Section 20 Interim prevention orders
99 Section 20 gives power to a sheriff to make an interim TEPO while the main application
under section 14 is being determined The sheriff may make such an order if the sheriff
considers it just to do so (subsection (1)) and such an order may contain prohibitions or
requirements (or both) in relation to the person in respect of whom the order is to have effect
(subsection (2)) Those prohibitions or requirements may relate to things to be done or not done
in any part of Scotland or anywhere outwith Scotland (subsection (3))
100 Subsection (4) provides that an interim TEPO will only have effect for a fixed period
specified in the order and will cease to have effect on the determination of an application for a
TEPO under section 14 if that fixed period has not expired
101 Subsection (5) allows for an application to a sheriff in the sheriffdom of the sheriff who
made the interim TEPO for variation or discharge of that order Such an application may be
made by the person in respect of whom the order was made or the chief constable
Section 21 Appeals prevention orders
102 Section 21 provides for an appeals process in relation to TEPOs and interim TEPOs
103 Subsection (1) makes provision about TEPOs made on sentencing and any variation or
renewal of such a TEPO These are to be treated as sentences for the purposes of any appeal
104 Subsections (2) (3) and (4) make provision about appeals in relation to TEPOs made on
application any variation or renewal of such a TEPO and interim TEPOs The person in respect
of whom the order was made or the chief constable may appeal against any of these orders
16
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
Trafficking and exploitation risk orders
Section 22 Risk orders
105 Section 22 provides that the chief constable may apply to a sheriff for a trafficking and
exploitation risk order (TERO) against an adult A TERO differs from a TEPO in that it may be
made where a person has not previously been convicted of a trafficking or exploitation offence
but the personrsquos behaviour indicates a risk that others may be at harm as a result of that person
committing such an offence and intervention at an early stage is necessary to prevent that harm
A TEPO can only be made where a relevant offence has already been committed
106 Subsection (2) sets out the appropriate sheriff to whom an application for such an order
may be made
107 Subsection (3) sets out the tests for making a TERO The sheriff may only make an order
if satisfied that the person in respect of whom the order is sought has acted in a way which
means that there is a risk the person may commit a relevant trafficking or exploitation offence
(subsection (3)(a)) and it is necessary to make the prohibitions or requirements in the order for
the purpose of protecting persons generally or particular persons from the physical or
psychological harm which would be likely to occur if the person committed such an offence
(subsection (3)(b))
108 Subsection (4) provides that in assessing those tests the sheriff may consider conduct
which occurred before this section comes into force
Section 23 Contents of risk orders
109 Section 23 makes provision about the prohibitions or requirements (or both) that may be
contained in a TERO Each prohibition and requirement in a TERO is for a fixed period and the
order itself is for a fixed period The orders and the prohibitions or requirements may all be for
the same period However the Bill allows some requirements and prohibitions in the order to be
set for a shorter period if that is appropriate
110 Subsection (2) provides that both the order and any prohibition or requirement in the
order must have a specified fixed period of at least two years However this does not apply to a
prohibition on foreign travel or to an order that contains a prohibition on foreign travel and no
other prohibitions or requirements Such a prohibition (or an order containing only such a
prohibition) must be for a fixed period of no more than five years under section 24(1))
111 Subsection (4) provides that a TERO may prohibit the person in respect of whom the
order is made from doing things or require that person to do things Different prohibitions and
requirements may have effect for different periods
112 Subsection (5) provides that if the sheriff makes a TERO in relation to a person already
subject to such an order the earlier order will cease to have effect
17
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
Section 24 Prohibitions on foreign travel
113 Section 24 makes provision about prohibitions on foreign travel contained in a TERO
114 As noted above subsection (1) provides that a prohibition on foreign travel contained in a
TERO and any TERO which contains such a prohibition and no other prohibitions or
requirements must be for a fixed period of not more than five years
115 Subsection (2) defines a ―prohibition on foreign travel as a prohibition on travelling to
countries outwith the UK (either by reference to particular countries or generally)
116 Subsection (3)(a) determines that a prohibition on foreign travel varied or renewed under
section 25 may be varied or renewed for further fixed periods of no more than five years each
time Subsection (3)(b) requires that an order containing only a foreign travel restriction may be
renewed for up to that fixed period
117 Subsection (4) sets out the requirement on a person in respect of whom a TERO has been
made containing a prohibition on foreign travel to all countries outwith the United Kingdom to
surrender at a police station each passport that the person has Subsection (5) provides that any
passport surrendered must be returned as soon as is reasonably practicable after the person
ceases to be subject to a prohibition on foreign travel to all countries outwith the United
Kingdom Circumstances where this subsection would not apply are provided for at subsection
(6) for example where a passport has already been returned to the relevant authority
Section 25 Variation renewal and discharge of risk orders
118 Section 25 makes provision about the variation renewal or discharge of TEROs
119 Subsections (1) to (3) set out general powers in this context The person in respect of
whom the TERO is made or the chief constable may apply to the sheriff for variation renewal or
discharge of a TERO Subsection (3) makes provision about shrieval jurisdiction in this
connection Where the sheriff receives such an application the sheriff may vary renew or
discharge individual prohibitions or requirements or add new prohibitions or requirements
renew the whole order or discharge the whole order
120 Subsection (4) provides that the sheriff must before making an order under this section
give an opportunity to make representations to the person in respect of whom the order is made
and the chief constable Subsection (5) provides that after taking into account any such
representations the sheriff may then make any order the sheriff considers appropriate
121 Subsection (6) sets out the tests the sheriff must consider when deciding whether to vary
renew or discharge TEROs (including by adding new prohibitions or requirements) or any
prohibitions or requirements within them Subsection (6)(a) applies the tests for the making of a
TERO to any variation (including an increase or a relaxation of a requirement or prohibition)
renewal or addition Subsection (6)(b) applies those tests to any discharge of a prohibition or
requirement or of an order
18
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
Section 26 Interim risk orders
122 Section 26 provides that a sheriff may make an interim TERO while the main application
under section 22 is being determined The sheriff may make such an order if the sheriff
considers it just to do so (subsection (1)) and such an order may contain prohibitions or
requirements (or both) in relation to the person in respect of whom the order is to have effect
(subsection (2)) Those prohibitions or requirements may relate to things to be done or not done
in any part of Scotland or anywhere outwith Scotland (subsection (3))
123 Subsection (4) provides that an interim TERO will only have effect for a fixed period
specified in the order and will cease to have effect on the determination of the main application
if that fixed period has not already expired
124 Subsection (5) allows for an application for variation or discharge of an interim TERO
(or a requirement or prohibition in the order) to be made to a sheriff in the sheriffdom of the
sheriff who made the interim order by the person in respect of whom the order was made or the
chief constable (subsection (6))
Section 27 Appeals risk orders
125 Section 27 provides for an appeals process in relation to TEROs and interim TEROs and
any order varying or renewing such a TERO or interim TERO The person in respect of whom
the order was made or the chief constable may appeal against any of these orders
Offences and supplementary provision
Section 28 Offences
126 Section 28 makes provision about breach of TEPOs and TEROs
127 Subsections (1) and (2) provide that a person commits an offence if that person does
anything which the person is prohibited from doing by an order or fails to do anything which the
person is required to do by a TEPO or a TERO or an interim TEPO or TERO
128 Subsection (3) makes provision about penalties in relation to these offences A person
who commits an offence under this section is liable on summary conviction to imprisonment for
a term not exceeding 12 months or a fine not exceeding the statutory minimum (or both) On
conviction on indictment that person is liable to imprisonment for a term not exceeding five
years or a fine (or both)
Section 29 Enforcement of other UK orders
129 Section 29 provides that the Scottish Ministers may modify by regulations the list of
orders at section 28(2) so that a breach of those orders in Scotland constitutes an offence under
section 28(1) The orders which may be added are ―relevant UK orders Those are described in
subsection (2) as orders under the law of England and Wales or Northern Ireland which appear to
the Scottish Ministers to be equivalent or similar to TEPOs TEROs or interim TEPOs or
TEROs
19
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
Section 30 Interpretation of Part 4
130 Section 30 defines certain terms used in Part 4
PART 5 - STRATEGY AND REPORTING
Section 31 Trafficking and exploitation strategy
131 Section 31 places a duty on the Scottish Ministers to prepare a trafficking and
exploitation strategy The strategy under this section is a strategy which sets out such actions
arrangements and outcomes as the Scottish Ministers consider appropriate in relation to the
conduct which constitutes an offence under this Act
132 Subsection (3) lists some of the matters which may be set out in the strategy though that
list is not exhaustive Those matters include for example training and awareness raising in
relation to the detection and prevention of the conduct which constitutes an offence of human
trafficking or an offence under section 4
Section 32 Review and publication of strategy
133 Subsection (1) of section 32 provides that the strategy prepared under section 31 must be
reviewed by the Scottish Ministers every three years Following a review the Scottish Ministers
are required by subsection (2) to prepare a report on the review including an assessment of the
extent to which the strategy has been complied with and may prepare a revised strategy If a
decision is taken following such a review not to prepare a revised strategy the Scottish Ministers
must set out their reasons for that decision
134 Subsection (4) places a duty on the Scottish Ministers to consult with those likely to have
an interest in the strategy before preparing or reviewing the strategy Those likely to have an
interest include but are not limited to businesses support agencies faith based groups etc
135 Subsection (5) requires the Scottish Ministers to publish and lay before the Scottish
Parliament each strategy and report prepared under this section
Section 33 Duty to co-operate on strategy
136 Section 33 provides that Scottish public authorities as specified in regulations that may
be made by the Scottish Ministers must provide such information and assistance as the Scottish
Ministers may reasonably require and otherwise co-operate with the Scottish Ministers in the
preparation or review of the strategy A specified public authority could include for example
Police Scotland and local authorities
Section 34 Duty to notify and provide information about victims
137 Section 34 places a duty on specified Scottish public authorities to notify the chief
constable of the Police Service of Scotland about a person who is or appears to be a victim of
20
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
an offence under section 1 or section 4 This duty would not affect any other general right to
report information relating to crime
138 Subsection (2) requires that a notification relating to an adult is anonymised and does not
include any information that identifies the adult or enables the adult to be identified unless the
adult consents to that data being provided
139 Subsection (3) provides that the Scottish Ministers may by regulations specify the
Scottish public authorities who are to be subject to this duty and may make provision about the
information to be included in the notification The regulations will be subject to the negative
procedure
PART 6 ndash FINAL PROVISIONS
Section 35 Offences by bodies corporate etc
140 Section 35 provides that where an offence under the Bill was committed by a body
corporate or a Scottish partnership or other unincorporated association and it is proved that the
offence was committed with the consent or connivance of or was attributable to any neglect on
the part of a relevant individual or someone purporting to be acting in the capacity of a relevant
individual that individual as well as the body corporate partnership or unincorporated
association commits the offence and is liable to be proceeded against and punished accordingly
141 Subsection (2) defines what is meant by a ―relevant individual for the purpose of this
section
Section 36 Interpretation
142 Section 36 defines certain terms for the purposes of the Bill for example the definition
of ―travel
Section 37 Regulations
143 The Scottish Ministers are given various powers under this Bill to make regulations
Section 37 provides for the parliamentary procedure which is to be applicable in relation to each
of those powers
Section 38 Ancillary provision
144 Section 38 provides that the Scottish Ministers may make regulations containing such
incidental supplementary consequential transitional transitory or saving provision as they
consider necessary or expedient for the purposes of or in connection with the provisions of the
Bill
21
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
Section 39 Minor and consequential amendments
145 Section 39 introduces the schedule which makes minor amendments and amendments
consequential on the provisions of the Bill Given their replacement in Part 1 of the Bill the
schedule repeals the current offences in relation to human trafficking (section 22 of the 2003 Act
and section 4 of the 2004 Act) and slavery servitude and forced or compulsory labour (section
47 of the 2010 Act)
Section 40 Crown application
146 Section 40(1) provides that none of the provisions made by or under the Act are capable
of making the Crown criminally liable In accordance with subsection (2) enforcement of
offences against the Crown is to be done by the Scottish Ministers or any other public body or
office-holder with responsibility for enforcing the provision applying to the Court of Session for
a civil declarator of non-compliance This provision does not apply to persons in the public
service of the Crown
Section 41 Commencement
147 Section 41 provides that sections 36 37 38 40 41 and 42 of the Bill come into force on
the day after Royal Assent All other provisions are to come into force on a day appointed by
regulations made by the Scottish Ministers
22
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
FINANCIAL MEMORANDUM
INTRODUCTION
1 This document relates to the Human Trafficking and Exploitation (Scotland) Bill (―the
Bill) introduced in the Scottish Parliament on 11 December 2014 It has been prepared by the
Scottish Government to satisfy Rule 932 of the Parliamentrsquos Standing Orders It does not form
part of the Bill and has not been endorsed by the Parliament
2 The purpose of the Bill is to consolidate and strengthen the existing criminal law against
human trafficking and exploitation and enhance the status and support provided to victims Bill
provisions are in the following Partsmdash
Part 1 (Offences) includes provision on the creation of a single offence of human trafficking
for all types of exploitation of both adults and children establishes statutory aggravators of
human trafficking for use with other crimes and reframes the current standalone offence of
slavery servitude and forced or compulsory labour
Part 2 (Protection of victims) includes provision on prosecutorial guidelines for the
prosecution of victims and provision about the support and assistance to which adult victims
are entitled
Part 3 (Confiscation of property) includes provision on detention and forfeiture of property
and proceeds of crime
Part 4 (Trafficking and exploitation prevention and risk orders) includes provision on
two new preventive orders the trafficking and exploitation prevention order and the
trafficking and exploitation risk order
Part 5 (Strategy and reporting) includes provision on the trafficking and exploitation
strategy and the duty on specified Scottish public authorities to notify and provide
information about victims
Part 6 contains general and ancillary provisions
3 This Financial Memorandum considers the financial implications of each of the elements
of the Bill where relevant
BACKGROUND
4 Before considering the financial implications associated with the specific provisions
within the Bill it is important to consider both the current estimated extent of human trafficking
in Scotland and existing activity by public bodies and others in response to this issue
23
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
Extent of human trafficking in Scotland
5 Human trafficking is by its nature a hidden crime The National Referral Mechanism
(NRM) is the process set up by the UK Government to identify and support victims of trafficking
in the UK The NRM is also the mechanism by which the UK Human Trafficking Centre
collects data about potential victims of trafficking Information about suspected child and adult
victims of human trafficking is referred by relevant ―first responder organisations such as the
police and third sector bodies for example Migrant Help and the Trafficking Awareness Raising
Alliance (TARA) Referrals relate to victims trafficked from outside and within the UK The
table below summarises the most recent available information on NRM referrals from first
responder organisations in Scotland
Table 1 Recent referrals from first responders in Scotland of potential child and adult
human trafficking victims to the National Referral Mechanism
2012 2013
Adults 67 77
Children 29 22
Total 96 99
of all UK Referrals 8 6
Source National Crime Agency National Referral Mechanism Statistics 2012 and 20131
6 Various reports confirm that the number of victims referred through the NRM is likely to
be a significant underestimate of the actual number of potential victims of trafficking For
example the Equality and Human Rights Commission Inquiry into Human Trafficking in
Scotland (2011) noted ―estimates of identified potential victims do not reflect what is likely to be
a much greater number of unidentified victims2
7 The UK National Crime Agency (NCA) Strategic Assessment of the Nature and Scale of
Human Trafficking in the UK3 aims to provide an indication of the nature and scale of human
trafficking beyond the number of referrals to the NRM The assessment is produced using
intelligence held by the NCA the NRM and intelligence information collected from agencies
such as Police Scotland the Home Office Gangmastersrsquo Licensing Authority and non-
government organisations The assessment removes information of potential victims referred to
the NRM who have received a negative ―reasonable grounds or ―conclusive decision (ie it
has been confirmed that they are not victims of trafficking) or duplicate information about
individuals (ie the same person has been referred more than once or by more than one agency)
to show a total number of ―unique potential victims of trafficking The NCA Assessment for
2013 indicated that there were significantly more unique potential victims of human trafficking
identified across the UK than the numbers referred to the NRM even excluding those that
received a negative decision and that the number of unique victims was increasing
1 httpwwwnationalcrimeagencygovukpublications399-nca-strategic-assessment-the-nature-and-scale-of-
human-trafficking-in-2013file 2httpwwwequalityhumanrightscomsitesdefaultfilesdocumentsScotlandHuman_Trafficking_in_Scotland_inq
uiry_into_human_trafficking_in_scotland-full-report_pdf_pdf 3 httpwwwnationalcrimeagencygovukpublications399-nca-strategic-assessment-the-nature-and-scale-of-
human-trafficking-in-2013file
24
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
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Table 2 Comparison of recent UK referrals to the National Referral Mechanism and the
National Crime Agency Strategic Assessment of the Scale of Human Trafficking
2012 2013 Change
Referred to NRM 778 1095 +41
NCA Assessment No of
Unique Potential Victims
Identified
2255 2744 +22
Source National Crime Agency Strategic Assessment of the Nature and Scale of Human
Trafficking in the UK4
8 For Scotland the NCA Assessment for 2013 identified 55 unique potential victims of
human trafficking compared with 99 referrals to the NRM It is not known why in contrast to
the position in England and Wales the NCA Assessment for Scotland is lower than the NRM
referrals although it will exclude potential victims who received a negative conclusive decision
and duplicate referrals However these numbers must be treated with significant caution There
remains strong conviction amongst law enforcement bodies and victims organisations that there
are more victims of trafficking than are identified and that even once identified victims are
often unwilling to engage with authorities or identify themselves as having been trafficked For
the purpose of this Financial Memorandum the Scottish Government has accepted the NCA
assessment that there are likely to be between two and three times as many potential victims of
trafficking as are currently identified through the NRM This assessment is based on the Scottish
Governmentrsquos best understanding of the hidden nature of this crime and the known reluctance of
some victims to identify their trafficked status or to engage with public authorities
Criminal justice response to human trafficking and exploitation
9 There have been relatively few prosecutions and convictions for human trafficking
offences under existing criminal justice legislationmdash
The Criminal Justice (Scotland) Act 20035 (―the 2003 Act) provides for offences of
trafficking for the purposes of exploitation by way of prostitution
The Asylum and Immigration (Treatment of Claimants etc) Act 20046 (―the 2004
Act) provides for offences of trafficking for labour and other forms of exploitation
The Criminal Justice and Licensing (Scotland) Act 20107 (―the 2010 Act) amended
and extended the 2003 and 2004 Acts and created a standalone offence of holding
someone in slavery or servitude or requiring a person to perform forced or
compulsory labour
10 The first successful convictions for human trafficking in Scotland were in 2011 under
section 22 of the 2003 Act for trafficking for the purposes of prostitution During 2013 a total of
four people were convicted of human trafficking offences - one person under section 22 of the
2003 Act and three people under section 4 of the 2004 Act for trafficking for forced marriage
4 httpwwwnationalcrimeagencygovukpublications399-nca-strategic-assessment-the-nature-and-scale-of-
human-trafficking-in-2013file 5 httpwwwlegislationgovukasp20037
6 httpwwwlegislationgovukukpga200419
7 httpwwwlegislationgovukasp201013
25
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
The average custodial sentence length for those convicted of trafficking offences was 847 days
(just under two years and four months) as well as any confiscation order imposed
11 Although the number of convictions for trafficking offences has been small police and
the Crown Office and Procurator Fiscal Service (COPFS) have confirmed that even though it is
not possible to always prove the trafficking offence where a credible suspicion exists people
suspected of involvement with trafficking can and often are prosecuted and convicted for other
crimes such as crimes associated with prostitution forced marriage immigration offences and
drugs offences etc
12 Police Scotland has established a dedicated National Human Trafficking Unit to enhance
the police response to human trafficking through awareness raising intelligence gathering
training and providing divisions with advice and specialist knowledge The COPFS has
appointed dedicated expert fiscals to prosecute human trafficking offences
Support for victims of trafficking
13 The Scottish Government currently allocates direct grant funding to non-government
organisations to provide and facilitate immediate support and assistance to the adult victims of
human trafficking This support can include immediate safe accommodation psychological
support assistance in accessing medical treatment material assistance interpretation and
translation and assistance either with repatriation or securing longer-term access to mainstream
services and support such as welfare benefits and housing The provision of support and
assistance is not conditional on the potential victim being willing to participate in the criminal
justice process Under the NRM victims of trafficking are guaranteed ―a recovery and reflection
period to recover from their experience escape the influence of those alleged to have trafficked
or exploited them and consider whether to engage with authorities The Council of Europe
Convention on Action Against Trafficking in Human Beings8 provides for a reflection period of
at least 30 days for all trafficked victims when there are reasonable grounds to believe that the
person concerned is a victim The current minimum recovery and reflection period in Scotland
and the rest of the UK is 45 days
14 In 2013-14 total grant funding of pound723000 was provided by the Scottish Government
towards the costs of ensuring immediate support and assistance for the adult victims and
potential victims of trafficking in Scotland This funding was provided through two non-
government organisationsmdash
the TARA Service which works with women aged 18 years and over across
Scotland where there are concerns that they have been trafficked for commercial
sexual exploitation and
Migrant Help a UK-wide organisation providing support and advice services to
migrants including new asylum claimants refugees EU nationals etc
15 Support for the child victims of trafficking is co-ordinated by local authorities as part of
their child protection arrangements and in line with the policy intention that children remain
8 httpwwwcoeinttdghlmonitoringtraffickingdocsconvntnCETS197_enasp
26
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
children first and that their needs should be treated accordingly The Scottish Government has
produced a toolkit for agencies working with children and young people to ensure that staff are
able to identify trafficked children and make appropriate referrals so that victims can receive
protection and support The toolkit is designed to be used in conjunction with National Child
Protection Guidance9 which was first published in 2010 and refreshed in 2014 and other
relevant national and international guidance Information about current expenditure on child
victims of trafficking is not recorded separately from information about wider expenditure on
child protection services
Lord Advocate guidance on prosecution policy
16 In his letter of 21 January 2013 to the Scottish Parliament European and External
Relations Committee10
the Lord Advocate set out the current arrangements for fiscals
considering the prosecution of a confirmed or potential victim of human trafficking where it is
believed or claimed that the crime was committed as a direct consequence of the personrsquos
trafficked status The letter set out the basis for the current Lord Advocatersquos guidance to
prosecutors including the presumption against the prosecution of a credible trafficking victim
for crimes that arise as a consequence of the victimrsquos trafficked status
Human trafficking strategic approach awareness raising and training
17 The first Scottish Human Trafficking Summit was hosted by the Cabinet Secretary for
Justice in October 2012 The summit brought together key law enforcement public private and
third sector organisations with an interest in human trafficking Following the summit a number
of strategic collaborative actions were agreed and progressed including with reference to
awareness raising and training for frontline staff data collection and analysis identification care
and support for both child and adult victims of trafficking and enhancing enforcement
18 One specific workstream related to awareness raising and training of front-line staff
likely to come into contact with trafficking victims or potential instances of trafficking
Following the summit Police Scotland with support from the Scottish Government and others
prepared published and circulated widely an awareness raising leaflet ndash Reading the Signs11
ndash to
assist police officers and staff in other front line posts in identifying the signs of potential
trafficking The Scottish Government also participated with the UK Government in a UK-wide
public awareness raising campaign about modern slavery and trafficking
19 In addition to general awareness raising specific training material was prepared for key
front-line staff For example all police officers were required to undertake an e-learning course
on human trafficking A special leaflet for health workers was prepared and circulated by NHS
Health Scotland An e-learning module for health workers about their role in identifying and
9 httpwwwscotlandgovukPublications2014053052
10httpwwwscottishparliamentukS3_EuropeanandExternalRelationsCommitteeGeneral20DocumentsLetterfro
mTheLordAdvocatepdf 11
httpwwwscotlandpoliceukassetspdf174967human-traffickingview=Standard
27
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
responding to victims of trafficking was made available through the National Gender Based
Violence and Health Programme12
IMPACT OF SPECIFIC PROVISIONS
PART 1 - OFFENCES
Single trafficking offence
20 The Bill establishes a new single offence of human trafficking for all types of
exploitation for both adults and children replacing existing separate criminal offences (see
paragraph 9 above) As noted above to date there have been relatively small numbers of
prosecutions under existing trafficking offences
21 The maximum penalty for conviction on indictment for the single trafficking offence will
be life imprisonment compared with a maximum of 14 years for the current separate offences
Although it will be for the court to decide how to sentence people convicted under the new single
offence in any given case it is likely that the availability of a higher maximum sentence will
have cost implications for the Scottish Prison Service (SPS)
Revised slavery servitude and forced labour offence
22 The Bill will also repeal and replace the existing exploitation offence within section 47 of
the 2010 Act which criminalises holding someone in slavery or servitude or requiring them to
perform compulsory or forced labour The offence will be revised and strengthened to allow the
court to consider in assessing whether a person has been a victim of an offence the victimrsquos
characteristics such as age physical or mental illness disability or where relevant family
relationships The maximum penalty for the offence will be increased from 14 years for the
current offence to life imprisonment for a conviction on indictment
Statutory aggravators
23 The Bill makes provision for statutory aggravators which apply in cases where an
accused person commits an offence connected with human trafficking and for when the offence
is committed in connection with the accusedrsquos position as a public official The court must take
the aggravation into account in determining the appropriate sentence if it is proved that the
offence is aggravated in this way The statutory aggravator is not anticipated to have any
substantial financial implications for public private or third sector bodies or for individuals
Costs on the Scottish Administration
24 Consolidating and clarifying the existing criminal law on trafficking and exploitation
alongside other measures arising from the Bill and the trafficking and exploitation strategy
including training and awareness raising and support for victims should increase the potential
for successful investigations prosecutions and convictions of human trafficking and exploitation
offences There have been six successful prosecutions for a specific trafficking offence to date in
Scotland with an average custodial sentence length of two years and four months against a
12
httpwwwgbvscotnhsuk
28
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
maximum possible sentence of 14 years The maximum number of prosecutions in any one year
was four individuals in two separate cases
25 Police and prosecutors already have in place specialist resources for investigating and
prosecuting human trafficking and exploitation offences and these provisions will not add to
these costs Law enforcement agencies have confirmed that whilst the number of prosecutions
for specific trafficking offences has been low where victims are identified but are unwilling to
testify individuals suspected of trafficking and exploitation will be prosecuted in court for other
related offences The Lord Advocate has identified that ―If we donrsquot have the evidence [to
prosecute for a specific human trafficking offence] we prosecute for fraud ID theft or asylum
and immigration offences13
26 The Scottish Government does not anticipate therefore significant additional cost
implications for law enforcement agencies or courts as cases will often proceed with a
trafficking offence alongside or in place of other related offences For the same reason the
Scottish Government does not anticipate significant additional cost on the Scottish Legal Aid
Board (SLAB) However if it is assumed that the number of successful trials proceeding in any
single year doubles from two to four there would be some additional costs on the COPFS the
Scottish Court Service (SCS) and SLAB based on the average unit costs for cases proceeded
either through Sheriff Court Solemn procedure or through the High Court These estimated costs
depending on whether cases are proceeded through the High Court or Sheriff Court solemn
procedure are illustrated in the table below
Table 3 Estimated unit costs of additional trial procedures through either High Court or
Sheriff Court solemn procedure (pound000)
Average prosecution
costs per procedure
(COPFS)
Average court costs
per procedure (SCS)
Average legal aid
costs per procedure
(SLAB)
Sheriff Court solemn
procedure (pound000) pound49 pound19 pound16
High Court (pound000) pound556 pound90 pound135
Estimated average
costs of 2 additional
trial procedures 4
accused per annum
(pound000)
pound99-pound1112 pound38-pound180 pound64-pound540
Source costs of the Criminal Justice System in Scotland Dataset (2013)14
27 There will also be costs to the SPS both through any increase in the number of successful
convictions for trafficking and exploitation offences and an anticipated increase in the average
length of custodial sentence for these crimes It is not possible to know for certain the total
13
httpwwwdailyrecordcouknewsscottish-newsonly-three-successful-prosecutions-brought-4457684 14httpwwwscotlandgovukTopicsStatisticsBrowseCrimeJusticePublicationscostcrimjustsc
otcostcrimjustdatasethttpwwwscotlandgovukTopicsStatisticsBrowseCrimeJusticePublicationscostcrimj
ustscotcostcrimjustdataset
29
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
number of future convictions or what sentencing decisions might be taken by courts in individual
cases
28 The table below illustrates the potential cost implications of either maintaining or
increasing the current maximum number of convictions in any individual year from four to eight
convictions For the purpose of the calculation it is assumed that the average custodial sentence
length for trafficking and exploitation offences will increase from two years and four months
(classified as a short-term sentence) to over four years (classified as a long-term sentence) as
increasing the maximum sentence to life imprisonment is anticipated to increase the average
sentence for a trafficking offence The estimated average annual cost of a prison place based on
SPS figures is pound42500 Taking account of the current early release arrangements for long-term
prisoners and the overlapping of individual sentences would result in an estimated increase of 8
to 21 total prison places each year after four years ndash ie with an additional four people receiving
custodial sentences each year and released by the Parole Board at the halfway point of their
sentence or automatically at the two-thirds point The total costs to the SPS will be within a
range of pound340000 to pound890000 These costs will fit within the overall budget costs to the SPS
As at 17 October 2014 there were 7731 people in custody in Scotland An additional 21 places
accounts for 03 of the total prison population
Table 4 Estimated range of costs to the Scottish Prison Service from increasing the
number and average length of successful prosecutions for trafficking offences
Year 1 Year 2 Year 3 Year 4
Additional Prison places 0-4 4-12 8-17 8-21
Additional Cost (pound000) pound0-pound170 pound170- pound510 pound340-pound720 pound340-pound890
Table 5 Estimated range of combined costs for trial procedures and prison places
Year 1 Year 2 Year 3 Year 4
Additional Cost (pound000) pound20-pound353 pound190- pound693 pound360-pound900 pound360-pound1073
Costs on other bodies individuals and businesses
29 There will be no new costs falling on other bodies individuals and businesses as a
consequence of these sections but see the section below with reference to victim support
Costs on local authorities
30 There will be no new costs falling on local authorities as a consequence of these specific
sections
PART 2 - PROTECTION OF VICTIMS
Duty on the Lord Advocate to publish guidance about the prosecution of credible trafficking and
exploitation victims who have committed offences
Costs on the Scottish Administration
31 As noted above the Lord Advocate already prepares and publishes guidance to fiscals
about the prosecution of credible victims of human trafficking for crimes committed as a direct
30
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
consequence of their trafficking status The requirement to publish such guidance would in
future be statutory However there will be no new costs on the Scottish Government or the
COPFS as a consequence of placing the requirement for the Lord Advocate to issue this
guidance on a statutory basis
Costs on other bodies individuals and businesses
32 There will be no new costs falling on other bodies individuals and businesses as a
consequence of these sections
Costs on local authorities
33 There will be no new costs falling on local authorities as a consequence of these sections
Ensure the rights of victims to access and support
34 The Bill will place a statutory duty on the Scottish Ministers to secure the provision of
relevant immediate support and recovery services for adult victims of trafficking subject to an
assessment of need The Bill will specify those victims or potential victims entitled to support
and the minimum time periods during which such services should be provided Specifically the
Bill will require Ministers to provide support and assistance based on each individualrsquos assessed
needs during the recovery and reflection period (currently 45 days) during which the
individualrsquos trafficking status is determined The Bill specifies minimum support and assistance
that should be considered as part of the assessment including access to housing treatment
interpretation services etc The Scottish Ministers have the flexibility to provide support and
assistance outwith the specified reflection and recovery period where this is considered
appropriate
35 As noted above the Scottish Ministers already provide grant funding totalling pound723000
to third sector organisations to assist identified adult potential victims of trafficking Provision of
support to adult victims will be placed on a statutory basis The number of adult potential victims
of trafficking referred through the NRM during 2013 was 77 although not all of these will have
requested assistance or received the full range of support services It is assumed that other
actions arising from the Bill including the single offence and publication of the trafficking and
exploitation strategy will result over time in an increase in identified victims and requests for
assistance and support
Costs on the Scottish Administration
36 The Scottish Government anticipates that improved awareness raising and training of
front-line staff will result in an increase in the number of victims identified over time It is not
possible to know how quickly this improvement will be achieved However between 2012 and
2013 the number of potential identified victims across the UK identified through the NCA
strategic assessment and NRM increased by 22 and 41 respectively Given the need for
awareness raising and training to impact the Scottish Government does not anticipate a similar
scale of increase in the immediate term but the Government considers it reasonable to anticipate
a possible increase of between 10 and 20 per annum in the overall number of requests for
assistance and support each year over the next four years Assuming a similar mix of needs as
31
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
current victims the increased costs to the Scottish Government on top of existing funding
would range between pound290000 to pound580000 per annum by year four
Table 6 Estimated range of costs increases for victim support and assistance (pound000)
Year 1 Year 2 Year 3 Year 4
Additional Cost (pound000) pound0-pound140 pound140-pound280 pound220-pound430 pound290-pound580
Costs on other bodies individuals and businesses
37 There will be no additional costs on other public bodies individuals or businesses
associated with these specific provisions There will be no direct additional costs falling on third
sector organisations as a consequence of the specific provisions It is likely however that all or
part of the additional funding identified above will be directed by the Scottish Government
through relevant third sector organisations with the expertise to provide immediate support and
protection to victims
Costs on local authorities
38 The Bill creates no new legislative requirements for the delivery of childrenrsquos services
recognising that this already exists It is therefore not anticipated that the Bill will result in any
quantifiable additional costs on local authorities or other public bodies as a result of support for
child victims Child victims of trafficking are supported as part of the Getting It Right for Every
Child (GIRFEC) approach any child whether identified as trafficked or not will be assessed on
the basis of its needs It is anticipated that as a consequence of the strategy (for which the Bill
provides) that more children may be identified as trafficked It is noted however that various
reports including most recently the UK Governmentrsquos NRM Review Report15
have found that
children who are already receiving support from relevant authorities in the UK are often not
identified as trafficked victims because of lack of awareness of the referral process It may be
that actions arising from the development of the strategy and dialogue with stakeholders will
give rise to additional activity or costs with reference to child victims of trafficking but these are
not known and cannot be estimated at this time
PART 3 - CONFISCATION OF PROPERTY
39 The Bill will provide police with powers to detain the property such as cars boats etc of
a person arrested for a trafficking offence This power will be exercised at the time of arrest and
is not expected to impose any additional costs on the police or others
Costs on the Scottish Administration
40 There will be no additional costs on the Scottish Government as a result of these
provisions Individuals can apply to the court to have vehicles ships or aircraft released from
detention This will be considered as part of the overall case and will not add to the costs to the
criminal justice system
15
httpsnrmhomeofficegovuk
32
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
Costs on other bodies individuals and businesses
41 There will be no additional costs on other public bodies individuals or businesses
including Police Scotland as a result of these specific provisions
Costs on local authorities
42 There will be no additional costs on local authorities as a result of these specific
provisions
PART 4 - TRAFFICKING AND EXPLOITATION PREVENTION AND RISK ORDERS
Introduce new measures to disrupt and prevent trafficking and exploitation
43 The Bill will introduce two new civil orders and associated interim orders to assist in
preventing trafficking and exploitation Trafficking and Exploitation Prevention Orders (TEPOs)
and Trafficking and Exploitation Risk Orders (TEROs) Where an individual has been convicted
of a trafficking or exploitation offence or an offence with a statutory trafficking aggravator a
TEPO may be imposed by a court where there is a risk that that individual may commit a further
human trafficking offence and it is necessary to make the order to protect people from the
physical or psychological harm which might occur if such an offence were committed The
TEPO will prevent the individual from engaging in activities described in the order Where a
person has not been convicted of a trafficking or exploitation offence but a court considers that
the person presents a significant risk of harm to others through the individual committing a
trafficking or exploitation offence the court can impose a TERO restricting specific activities or
imposing requirements These orders will be civil but breach of an order will constitute a
criminal offence with a maximum penalty of five years in prison available to the court
44 The Bill will categorise the trafficking and exploitation offences as lifestyle offences in
order to automatically trigger provisions within the Proceeds of Crime Act 2002 (―the 2002
Act) The definition of an offence as a ―lifestyle offence allows for proceedings under the
2002 Act to confiscate assets or monies from the individual convicted of the offence
Costs on the Scottish Administration
45 The purpose of TEPOs and TEROs is to prevent criminal activity associated with
trafficking and exploitation from arising There will be some cost implications for law
enforcement organisations which will need to monitor the terms of any order imposed by the
courts However these will be offset by the savings made from being able to intervene at an
early stage of criminality if an order has been breached For the equivalent civil orders within the
UK Modern Slavery Bill the UK Government has estimated potential net savings of between
pound130000 and pound1090000 per annum The Scottish Government has not incorporated any
savings for the purpose of Scottish legislation but expects the costs of implementing TEPOs and
TEROs and detention powers to be at least cost neutral for the Scottish Administration and other
public bodies
33
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
46 The Bill will give courts powers to impose a TEPO at the time of sentencing There will
be no immediate additional costs for the courts or COPFS associated with TEPOs imposed as
part of sentencing The Chief Constable of Police Scotland will also be able to apply to the court
for a TEPO to be imposed on a relevant offender previously convicted of a trafficking offence
There will be costs to Police Scotland in making the application and to the SCS and to SLAB in
considering the application As there have been only six previous convictions for trafficking
offences in Scotland the Scottish Government expects the number of applications for TEPOs for
previous convictions to be small one-off and will not add to the overall costs of the criminal
justice system The Chief Constable of Police Scotland can also apply to the court for a TERO
against an individual where it is considered that that individual is likely to commit a trafficking
offence
47 Looking at the equivalent costs for similar civil orders eg Sexual Offences Prevention
Orders the total costs to the SCS the COPFS and SLAB of applying for a TERO or post-
sentencing TEPO are estimated at between pound1000 and pound6000 per order It is not possible to
know how many TEPOs or TEROs might be applied for but assuming a number half the level of
the estimated maximum number of potential convictions for trafficking offences each year (four
to eight) would give estimated costs of between pound2000 (2 x pound1000) and pound24000 (4 x pound6000)
per annum
48 There will be costs to Police Scotland in monitoring TEPOs and TEROs whether
imposed at the time of sentence or by application but this will sit alongside Police Scotlandrsquos
existing crime prevention and investigative responsibilities and is not expected to add to
manpower costs
49 In addition to the costs of imposing and monitoring TEPOs and TEROs there will be
costs associated with prosecuting a breach of a TEPO or TERO Analysis in England and Wales
indicates that breaches of equivalent Serious Crime Prevention Orders are relatively low
Assuming one breach per annum the total combined costs to the COPFS the SCS and SLAB
would be between pound8400 and pound78100 per annum (see the combined costs for either sheriff
court or High Court procedures set out in Table 3 above) Assuming a maximum sentence of
five years the costs to the SPS for additional prison places would be between pound85000 and
pound127500 per annum (ie the pound42500 average costs of a prison place times either two or three
places depending on whether offenders are released early at the halfway or two-thirds point of
their sentence)
50 It is important to remember however that the purpose of TEPOs and TEROs is to
prevent further trafficking and exploitation offences occurring A TEPO or TERO will only be
imposed where a court considers that there is a credible risk of an individual committing such a
crime Any costs associated with the imposition and breach of TEPOs and TEROs needs to be
offset against the potential costs of prosecutions If each TEPO or TERO prevents the costs of a
conviction for an offence as set out in Part 1 above the costs to the Scottish Administration
would be at least cost neutral in terms of saved court and prison places expenditure
34
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
Costs on other bodies individuals and businesses
51 There will be no costs on other bodies businesses or other individuals as a consequence
of these sections
Costs on local authorities
52 There will be no new costs on local authorities as a consequence of these sections
PART 5 - STRATEGY AND REPORTING
Ensure a strategic cross-agency approach to tackling trafficking
53 The Bill places a duty on the Scottish Ministers to prepare publish and regularly review
and update a trafficking and exploitation strategy to assist in ensuring a co-ordinated and
strategic approach to this issue The provisions place a duty on Ministers to consult with such
organisations and individuals as they consider to have a relevant interest in the issues of human
trafficking and exploitation The Bill places a duty on relevant public bodies to be named in
regulations to assist in the preparation and review of the strategy
54 The Bill will place a duty on relevant public authorities to provide anonymised data about
potential human trafficking and exploitation victims to Police Scotland
Costs on the Scottish Administration
55 Activity arising from these provisions within the Bill will build on the activity and
current resources already committed to this area of work
56 Based on similar activities the estimated additional costs to the Scottish Ministers of
preparing and reviewing a trafficking and exploitation strategy will be approximately pound25000
every three years Alongside the preparation and publication of the strategy the Scottish
Ministers would also propose to support additional awareness raising and training activity to
build on the existing awareness raising and training activity already undertaken by relevant
organisations including the NHS Police Scotland and COPFS Consideration would be given to
how best to co-ordinate these resources alongside existing expenditure and activity For the
purposes of the Financial Memorandum and based on current activity additional costs on top of
existing activity are estimated at approximately pound100000 to pound250000 per annum over the first
four years of the Bill This is based on the best estimated costs of preparing and publishing
publicity and guidance material averaged over a number of years The exact costs will depend
on decisions taken in dialogue with stakeholders as part of the preparation of the strategy
57 The Scottish Government anticipates that the costs to relevant public authorities of
providing anonymised data about potential human trafficking victims to Police Scotland will be
marginal Costs to Police Scotland of collating this data will form part of their existing
intelligence gathering activity
35
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
Costs on other bodies individuals and businesses
58 There will be some costs on other bodies individuals and businesses in engaging with the
Scottish Ministers in the preparation and publication of the Strategy For business and
individuals this will be voluntary depending on their willingness to engage For public bodies
their level of engagement will depend on the relevance of the issue of trafficking and
exploitation to their work and their potential contribution to combating this behaviour Any
additional costs are expected to fit within or sit alongside their existing responsibilities for
example with reference to promoting and ensuring equalities and the application of human
rights obligations
Costs on local authorities
59 There will be costs on local authorities associated with engaging in the preparation and
review of the trafficking and exploitation strategy and in awareness raising and training of front-
line staff The additional costs should be marginal on top of the existing guidance and activity
already in place with reference to the identification and support of potential child victims of
trafficking The aim will be to minimise costs for other front-line local authority staff by
adapting the general awareness raising and training materials described above
SUMMARY
60 The table below provides a summary of the costs of each element of the Bill as described
above
Table 7 Summary table of costs for each aspect of the Bill (pound000)
Year 1 Year 2 Year 3 Year 4
Clarifying amp
Strengthening the
Criminal Law ndash Para 28 pound20-pound353 pound190- pound693 pound360-pound900 pound360-pound1073
Ensure the rights of
victims to access and
support - Para 36 pound70-pound140 pound140-pound280 pound220-pound430 pound290-pound580
Introduce new measures to
disrupt and prevent
trafficking pound016
pound0 pound0 pound0
Ensure a strategic cross
agency approach to
tackling trafficking ndash Para
56 pound125-pound275 pound100-pound250 pound100-pound250 pound125-pound275
TOTAL pound215-pound768 pound430-pound1223 pound680-pound1580 pound775-pound1928
16
The Scottish Government considers that the overall costs are at least cost neutral ndash see paragraphs 45 to 50
36
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December
SCOTTISH GOVERNMENT STATEMENT ON LEGISLATIVE
COMPETENCE
On 11 December 2014 the Cabinet Secretary for Justice (Michael Matheson MSP) made the
following statement
―In my view the provisions of the Human Trafficking and Exploitation (Scotland) Bill
would be within the legislative competence of the Scottish Parliament
mdashmdashmdashmdashmdashmdashmdashmdashmdashmdash
PRESIDING OFFICERrsquoS STATEMENT ON LEGISLATIVE
COMPETENCE
On 11 December 2014 the Presiding Officer (Rt Hon Tricia Marwick MSP) made the following
statement
―In my view the provisions of the Human Trafficking and Exploitation (Scotland) Bill
would be within the legislative competence of the Scottish Parliament
37
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December
SP Bill 57ndashEN Session 4 (2014)
HUMAN TRAFFICKING AND EXPLOITATION
(SCOTLAND) BILL
EXPLANATORY NOTES
(AND OTHER ACCOMPANYING DOCUMENTS)
Parliamentary copyright Scottish Parliamentary Corporate Body
Information on the Scottish Parliamentrsquos copyright policy can be found on the website -
wwwscottishparliamentuk
Produced and published in Scotland on behalf of the Scottish Parliamentary Corporate Body by APS
Group Scotland
ISBN 978-1-78534-569-2
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
Section 18 Orders on sentencing variation renewal and discharge
87 Section 18 makes provision about varying renewing and discharging TEPOs made on
sentencing
88 Subsections (2) to (4) set out general powers in this context The person in respect of
whom the TEPO is made or the prosecutor may apply for variation renewal or discharge of such
a TEPO That application is to be made to the High Court where that court made the order and
to the sheriff otherwise Subsection (4)(b) makes provision about shrieval jurisdiction in this
connection Where the relevant court receives such an application it may vary renew or
discharge individual prohibitions or requirements or add new prohibitions or requirements it
may renew the whole order or it may discharge the whole order
89 Subsection (5) provides that the court must before making an order under this section
give an opportunity to make representations to the person in respect of whom the order is made
the prosecutor and the chief constable Subsection (6) provides that after taking into account
any such representations the court may then make such order as it thinks appropriate
90 Subsection (7) sets out the tests the court must consider when deciding whether to vary
renew or discharge TEPOs made on sentencing (including by adding new prohibitions or
requirements) or any prohibitions or requirements within them Subsection (7)(a) applies the
tests for the making of a TEPO to any variation (including an increase or a relaxation of a
requirement or prohibition) renewal or addition Subsection (7)(b) applies those tests to any
discharge of a prohibition or requirement or of an order
91 Subsection (8) makes it clear that an order varying or renewing a TEPO is subject to the
requirements and prohibitions established by sections 16 and 17 in the same way as the original
order
92 Subsection (9) defines ―prosecutor for the purposes of this section
Section 19 Orders on application variation renewal and discharge
93 Section 19 makes provision about the variation renewal or discharge of TEPOs made on
application
94 Subsections (2) to (4) set out general powers in this context The person in respect of
whom the TEPO is made or the chief constable may apply to the sheriff for variation renewal or
discharge of a TEPO made on application Subsection (4)(b) makes provision about shrieval
jurisdiction in this connection Where the sheriff receives such an application the sheriff may
vary renew or discharge individual prohibitions or requirements or add new prohibitions or
requirements renew the order so that the period of the order itself is extended or discharge the
whole order
95 Subsection (5) provides that the sheriff must before making an order under this section
give an opportunity to make representations to the person in respect of whom the order is made
15
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
and the chief constable Subsection (6) provides that after taking into account any such
representations the sheriff may then make such an order as the sheriff thinks appropriate
96 Subsection (7) sets out the tests the sheriff must consider when deciding whether to vary
renew or discharge TEPOs on application (including by adding new prohibitions or
requirements) or any prohibitions or requirements within them Those tests reflect the tests for
the making of a TEPO
97 Subsection (8) provides that when determining an application under this section the
sheriff may consider conduct which occurred before this section comes into force
98 Subsection (9) makes it clear that an order varying or renewing a TEPO is subject to the
requirements and prohibitions established by sections 16 and 17 in the same way as the original
order
Section 20 Interim prevention orders
99 Section 20 gives power to a sheriff to make an interim TEPO while the main application
under section 14 is being determined The sheriff may make such an order if the sheriff
considers it just to do so (subsection (1)) and such an order may contain prohibitions or
requirements (or both) in relation to the person in respect of whom the order is to have effect
(subsection (2)) Those prohibitions or requirements may relate to things to be done or not done
in any part of Scotland or anywhere outwith Scotland (subsection (3))
100 Subsection (4) provides that an interim TEPO will only have effect for a fixed period
specified in the order and will cease to have effect on the determination of an application for a
TEPO under section 14 if that fixed period has not expired
101 Subsection (5) allows for an application to a sheriff in the sheriffdom of the sheriff who
made the interim TEPO for variation or discharge of that order Such an application may be
made by the person in respect of whom the order was made or the chief constable
Section 21 Appeals prevention orders
102 Section 21 provides for an appeals process in relation to TEPOs and interim TEPOs
103 Subsection (1) makes provision about TEPOs made on sentencing and any variation or
renewal of such a TEPO These are to be treated as sentences for the purposes of any appeal
104 Subsections (2) (3) and (4) make provision about appeals in relation to TEPOs made on
application any variation or renewal of such a TEPO and interim TEPOs The person in respect
of whom the order was made or the chief constable may appeal against any of these orders
16
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
Trafficking and exploitation risk orders
Section 22 Risk orders
105 Section 22 provides that the chief constable may apply to a sheriff for a trafficking and
exploitation risk order (TERO) against an adult A TERO differs from a TEPO in that it may be
made where a person has not previously been convicted of a trafficking or exploitation offence
but the personrsquos behaviour indicates a risk that others may be at harm as a result of that person
committing such an offence and intervention at an early stage is necessary to prevent that harm
A TEPO can only be made where a relevant offence has already been committed
106 Subsection (2) sets out the appropriate sheriff to whom an application for such an order
may be made
107 Subsection (3) sets out the tests for making a TERO The sheriff may only make an order
if satisfied that the person in respect of whom the order is sought has acted in a way which
means that there is a risk the person may commit a relevant trafficking or exploitation offence
(subsection (3)(a)) and it is necessary to make the prohibitions or requirements in the order for
the purpose of protecting persons generally or particular persons from the physical or
psychological harm which would be likely to occur if the person committed such an offence
(subsection (3)(b))
108 Subsection (4) provides that in assessing those tests the sheriff may consider conduct
which occurred before this section comes into force
Section 23 Contents of risk orders
109 Section 23 makes provision about the prohibitions or requirements (or both) that may be
contained in a TERO Each prohibition and requirement in a TERO is for a fixed period and the
order itself is for a fixed period The orders and the prohibitions or requirements may all be for
the same period However the Bill allows some requirements and prohibitions in the order to be
set for a shorter period if that is appropriate
110 Subsection (2) provides that both the order and any prohibition or requirement in the
order must have a specified fixed period of at least two years However this does not apply to a
prohibition on foreign travel or to an order that contains a prohibition on foreign travel and no
other prohibitions or requirements Such a prohibition (or an order containing only such a
prohibition) must be for a fixed period of no more than five years under section 24(1))
111 Subsection (4) provides that a TERO may prohibit the person in respect of whom the
order is made from doing things or require that person to do things Different prohibitions and
requirements may have effect for different periods
112 Subsection (5) provides that if the sheriff makes a TERO in relation to a person already
subject to such an order the earlier order will cease to have effect
17
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
Section 24 Prohibitions on foreign travel
113 Section 24 makes provision about prohibitions on foreign travel contained in a TERO
114 As noted above subsection (1) provides that a prohibition on foreign travel contained in a
TERO and any TERO which contains such a prohibition and no other prohibitions or
requirements must be for a fixed period of not more than five years
115 Subsection (2) defines a ―prohibition on foreign travel as a prohibition on travelling to
countries outwith the UK (either by reference to particular countries or generally)
116 Subsection (3)(a) determines that a prohibition on foreign travel varied or renewed under
section 25 may be varied or renewed for further fixed periods of no more than five years each
time Subsection (3)(b) requires that an order containing only a foreign travel restriction may be
renewed for up to that fixed period
117 Subsection (4) sets out the requirement on a person in respect of whom a TERO has been
made containing a prohibition on foreign travel to all countries outwith the United Kingdom to
surrender at a police station each passport that the person has Subsection (5) provides that any
passport surrendered must be returned as soon as is reasonably practicable after the person
ceases to be subject to a prohibition on foreign travel to all countries outwith the United
Kingdom Circumstances where this subsection would not apply are provided for at subsection
(6) for example where a passport has already been returned to the relevant authority
Section 25 Variation renewal and discharge of risk orders
118 Section 25 makes provision about the variation renewal or discharge of TEROs
119 Subsections (1) to (3) set out general powers in this context The person in respect of
whom the TERO is made or the chief constable may apply to the sheriff for variation renewal or
discharge of a TERO Subsection (3) makes provision about shrieval jurisdiction in this
connection Where the sheriff receives such an application the sheriff may vary renew or
discharge individual prohibitions or requirements or add new prohibitions or requirements
renew the whole order or discharge the whole order
120 Subsection (4) provides that the sheriff must before making an order under this section
give an opportunity to make representations to the person in respect of whom the order is made
and the chief constable Subsection (5) provides that after taking into account any such
representations the sheriff may then make any order the sheriff considers appropriate
121 Subsection (6) sets out the tests the sheriff must consider when deciding whether to vary
renew or discharge TEROs (including by adding new prohibitions or requirements) or any
prohibitions or requirements within them Subsection (6)(a) applies the tests for the making of a
TERO to any variation (including an increase or a relaxation of a requirement or prohibition)
renewal or addition Subsection (6)(b) applies those tests to any discharge of a prohibition or
requirement or of an order
18
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
Section 26 Interim risk orders
122 Section 26 provides that a sheriff may make an interim TERO while the main application
under section 22 is being determined The sheriff may make such an order if the sheriff
considers it just to do so (subsection (1)) and such an order may contain prohibitions or
requirements (or both) in relation to the person in respect of whom the order is to have effect
(subsection (2)) Those prohibitions or requirements may relate to things to be done or not done
in any part of Scotland or anywhere outwith Scotland (subsection (3))
123 Subsection (4) provides that an interim TERO will only have effect for a fixed period
specified in the order and will cease to have effect on the determination of the main application
if that fixed period has not already expired
124 Subsection (5) allows for an application for variation or discharge of an interim TERO
(or a requirement or prohibition in the order) to be made to a sheriff in the sheriffdom of the
sheriff who made the interim order by the person in respect of whom the order was made or the
chief constable (subsection (6))
Section 27 Appeals risk orders
125 Section 27 provides for an appeals process in relation to TEROs and interim TEROs and
any order varying or renewing such a TERO or interim TERO The person in respect of whom
the order was made or the chief constable may appeal against any of these orders
Offences and supplementary provision
Section 28 Offences
126 Section 28 makes provision about breach of TEPOs and TEROs
127 Subsections (1) and (2) provide that a person commits an offence if that person does
anything which the person is prohibited from doing by an order or fails to do anything which the
person is required to do by a TEPO or a TERO or an interim TEPO or TERO
128 Subsection (3) makes provision about penalties in relation to these offences A person
who commits an offence under this section is liable on summary conviction to imprisonment for
a term not exceeding 12 months or a fine not exceeding the statutory minimum (or both) On
conviction on indictment that person is liable to imprisonment for a term not exceeding five
years or a fine (or both)
Section 29 Enforcement of other UK orders
129 Section 29 provides that the Scottish Ministers may modify by regulations the list of
orders at section 28(2) so that a breach of those orders in Scotland constitutes an offence under
section 28(1) The orders which may be added are ―relevant UK orders Those are described in
subsection (2) as orders under the law of England and Wales or Northern Ireland which appear to
the Scottish Ministers to be equivalent or similar to TEPOs TEROs or interim TEPOs or
TEROs
19
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
Section 30 Interpretation of Part 4
130 Section 30 defines certain terms used in Part 4
PART 5 - STRATEGY AND REPORTING
Section 31 Trafficking and exploitation strategy
131 Section 31 places a duty on the Scottish Ministers to prepare a trafficking and
exploitation strategy The strategy under this section is a strategy which sets out such actions
arrangements and outcomes as the Scottish Ministers consider appropriate in relation to the
conduct which constitutes an offence under this Act
132 Subsection (3) lists some of the matters which may be set out in the strategy though that
list is not exhaustive Those matters include for example training and awareness raising in
relation to the detection and prevention of the conduct which constitutes an offence of human
trafficking or an offence under section 4
Section 32 Review and publication of strategy
133 Subsection (1) of section 32 provides that the strategy prepared under section 31 must be
reviewed by the Scottish Ministers every three years Following a review the Scottish Ministers
are required by subsection (2) to prepare a report on the review including an assessment of the
extent to which the strategy has been complied with and may prepare a revised strategy If a
decision is taken following such a review not to prepare a revised strategy the Scottish Ministers
must set out their reasons for that decision
134 Subsection (4) places a duty on the Scottish Ministers to consult with those likely to have
an interest in the strategy before preparing or reviewing the strategy Those likely to have an
interest include but are not limited to businesses support agencies faith based groups etc
135 Subsection (5) requires the Scottish Ministers to publish and lay before the Scottish
Parliament each strategy and report prepared under this section
Section 33 Duty to co-operate on strategy
136 Section 33 provides that Scottish public authorities as specified in regulations that may
be made by the Scottish Ministers must provide such information and assistance as the Scottish
Ministers may reasonably require and otherwise co-operate with the Scottish Ministers in the
preparation or review of the strategy A specified public authority could include for example
Police Scotland and local authorities
Section 34 Duty to notify and provide information about victims
137 Section 34 places a duty on specified Scottish public authorities to notify the chief
constable of the Police Service of Scotland about a person who is or appears to be a victim of
20
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
an offence under section 1 or section 4 This duty would not affect any other general right to
report information relating to crime
138 Subsection (2) requires that a notification relating to an adult is anonymised and does not
include any information that identifies the adult or enables the adult to be identified unless the
adult consents to that data being provided
139 Subsection (3) provides that the Scottish Ministers may by regulations specify the
Scottish public authorities who are to be subject to this duty and may make provision about the
information to be included in the notification The regulations will be subject to the negative
procedure
PART 6 ndash FINAL PROVISIONS
Section 35 Offences by bodies corporate etc
140 Section 35 provides that where an offence under the Bill was committed by a body
corporate or a Scottish partnership or other unincorporated association and it is proved that the
offence was committed with the consent or connivance of or was attributable to any neglect on
the part of a relevant individual or someone purporting to be acting in the capacity of a relevant
individual that individual as well as the body corporate partnership or unincorporated
association commits the offence and is liable to be proceeded against and punished accordingly
141 Subsection (2) defines what is meant by a ―relevant individual for the purpose of this
section
Section 36 Interpretation
142 Section 36 defines certain terms for the purposes of the Bill for example the definition
of ―travel
Section 37 Regulations
143 The Scottish Ministers are given various powers under this Bill to make regulations
Section 37 provides for the parliamentary procedure which is to be applicable in relation to each
of those powers
Section 38 Ancillary provision
144 Section 38 provides that the Scottish Ministers may make regulations containing such
incidental supplementary consequential transitional transitory or saving provision as they
consider necessary or expedient for the purposes of or in connection with the provisions of the
Bill
21
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
Section 39 Minor and consequential amendments
145 Section 39 introduces the schedule which makes minor amendments and amendments
consequential on the provisions of the Bill Given their replacement in Part 1 of the Bill the
schedule repeals the current offences in relation to human trafficking (section 22 of the 2003 Act
and section 4 of the 2004 Act) and slavery servitude and forced or compulsory labour (section
47 of the 2010 Act)
Section 40 Crown application
146 Section 40(1) provides that none of the provisions made by or under the Act are capable
of making the Crown criminally liable In accordance with subsection (2) enforcement of
offences against the Crown is to be done by the Scottish Ministers or any other public body or
office-holder with responsibility for enforcing the provision applying to the Court of Session for
a civil declarator of non-compliance This provision does not apply to persons in the public
service of the Crown
Section 41 Commencement
147 Section 41 provides that sections 36 37 38 40 41 and 42 of the Bill come into force on
the day after Royal Assent All other provisions are to come into force on a day appointed by
regulations made by the Scottish Ministers
22
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
FINANCIAL MEMORANDUM
INTRODUCTION
1 This document relates to the Human Trafficking and Exploitation (Scotland) Bill (―the
Bill) introduced in the Scottish Parliament on 11 December 2014 It has been prepared by the
Scottish Government to satisfy Rule 932 of the Parliamentrsquos Standing Orders It does not form
part of the Bill and has not been endorsed by the Parliament
2 The purpose of the Bill is to consolidate and strengthen the existing criminal law against
human trafficking and exploitation and enhance the status and support provided to victims Bill
provisions are in the following Partsmdash
Part 1 (Offences) includes provision on the creation of a single offence of human trafficking
for all types of exploitation of both adults and children establishes statutory aggravators of
human trafficking for use with other crimes and reframes the current standalone offence of
slavery servitude and forced or compulsory labour
Part 2 (Protection of victims) includes provision on prosecutorial guidelines for the
prosecution of victims and provision about the support and assistance to which adult victims
are entitled
Part 3 (Confiscation of property) includes provision on detention and forfeiture of property
and proceeds of crime
Part 4 (Trafficking and exploitation prevention and risk orders) includes provision on
two new preventive orders the trafficking and exploitation prevention order and the
trafficking and exploitation risk order
Part 5 (Strategy and reporting) includes provision on the trafficking and exploitation
strategy and the duty on specified Scottish public authorities to notify and provide
information about victims
Part 6 contains general and ancillary provisions
3 This Financial Memorandum considers the financial implications of each of the elements
of the Bill where relevant
BACKGROUND
4 Before considering the financial implications associated with the specific provisions
within the Bill it is important to consider both the current estimated extent of human trafficking
in Scotland and existing activity by public bodies and others in response to this issue
23
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
Extent of human trafficking in Scotland
5 Human trafficking is by its nature a hidden crime The National Referral Mechanism
(NRM) is the process set up by the UK Government to identify and support victims of trafficking
in the UK The NRM is also the mechanism by which the UK Human Trafficking Centre
collects data about potential victims of trafficking Information about suspected child and adult
victims of human trafficking is referred by relevant ―first responder organisations such as the
police and third sector bodies for example Migrant Help and the Trafficking Awareness Raising
Alliance (TARA) Referrals relate to victims trafficked from outside and within the UK The
table below summarises the most recent available information on NRM referrals from first
responder organisations in Scotland
Table 1 Recent referrals from first responders in Scotland of potential child and adult
human trafficking victims to the National Referral Mechanism
2012 2013
Adults 67 77
Children 29 22
Total 96 99
of all UK Referrals 8 6
Source National Crime Agency National Referral Mechanism Statistics 2012 and 20131
6 Various reports confirm that the number of victims referred through the NRM is likely to
be a significant underestimate of the actual number of potential victims of trafficking For
example the Equality and Human Rights Commission Inquiry into Human Trafficking in
Scotland (2011) noted ―estimates of identified potential victims do not reflect what is likely to be
a much greater number of unidentified victims2
7 The UK National Crime Agency (NCA) Strategic Assessment of the Nature and Scale of
Human Trafficking in the UK3 aims to provide an indication of the nature and scale of human
trafficking beyond the number of referrals to the NRM The assessment is produced using
intelligence held by the NCA the NRM and intelligence information collected from agencies
such as Police Scotland the Home Office Gangmastersrsquo Licensing Authority and non-
government organisations The assessment removes information of potential victims referred to
the NRM who have received a negative ―reasonable grounds or ―conclusive decision (ie it
has been confirmed that they are not victims of trafficking) or duplicate information about
individuals (ie the same person has been referred more than once or by more than one agency)
to show a total number of ―unique potential victims of trafficking The NCA Assessment for
2013 indicated that there were significantly more unique potential victims of human trafficking
identified across the UK than the numbers referred to the NRM even excluding those that
received a negative decision and that the number of unique victims was increasing
1 httpwwwnationalcrimeagencygovukpublications399-nca-strategic-assessment-the-nature-and-scale-of-
human-trafficking-in-2013file 2httpwwwequalityhumanrightscomsitesdefaultfilesdocumentsScotlandHuman_Trafficking_in_Scotland_inq
uiry_into_human_trafficking_in_scotland-full-report_pdf_pdf 3 httpwwwnationalcrimeagencygovukpublications399-nca-strategic-assessment-the-nature-and-scale-of-
human-trafficking-in-2013file
24
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
Table 2 Comparison of recent UK referrals to the National Referral Mechanism and the
National Crime Agency Strategic Assessment of the Scale of Human Trafficking
2012 2013 Change
Referred to NRM 778 1095 +41
NCA Assessment No of
Unique Potential Victims
Identified
2255 2744 +22
Source National Crime Agency Strategic Assessment of the Nature and Scale of Human
Trafficking in the UK4
8 For Scotland the NCA Assessment for 2013 identified 55 unique potential victims of
human trafficking compared with 99 referrals to the NRM It is not known why in contrast to
the position in England and Wales the NCA Assessment for Scotland is lower than the NRM
referrals although it will exclude potential victims who received a negative conclusive decision
and duplicate referrals However these numbers must be treated with significant caution There
remains strong conviction amongst law enforcement bodies and victims organisations that there
are more victims of trafficking than are identified and that even once identified victims are
often unwilling to engage with authorities or identify themselves as having been trafficked For
the purpose of this Financial Memorandum the Scottish Government has accepted the NCA
assessment that there are likely to be between two and three times as many potential victims of
trafficking as are currently identified through the NRM This assessment is based on the Scottish
Governmentrsquos best understanding of the hidden nature of this crime and the known reluctance of
some victims to identify their trafficked status or to engage with public authorities
Criminal justice response to human trafficking and exploitation
9 There have been relatively few prosecutions and convictions for human trafficking
offences under existing criminal justice legislationmdash
The Criminal Justice (Scotland) Act 20035 (―the 2003 Act) provides for offences of
trafficking for the purposes of exploitation by way of prostitution
The Asylum and Immigration (Treatment of Claimants etc) Act 20046 (―the 2004
Act) provides for offences of trafficking for labour and other forms of exploitation
The Criminal Justice and Licensing (Scotland) Act 20107 (―the 2010 Act) amended
and extended the 2003 and 2004 Acts and created a standalone offence of holding
someone in slavery or servitude or requiring a person to perform forced or
compulsory labour
10 The first successful convictions for human trafficking in Scotland were in 2011 under
section 22 of the 2003 Act for trafficking for the purposes of prostitution During 2013 a total of
four people were convicted of human trafficking offences - one person under section 22 of the
2003 Act and three people under section 4 of the 2004 Act for trafficking for forced marriage
4 httpwwwnationalcrimeagencygovukpublications399-nca-strategic-assessment-the-nature-and-scale-of-
human-trafficking-in-2013file 5 httpwwwlegislationgovukasp20037
6 httpwwwlegislationgovukukpga200419
7 httpwwwlegislationgovukasp201013
25
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
The average custodial sentence length for those convicted of trafficking offences was 847 days
(just under two years and four months) as well as any confiscation order imposed
11 Although the number of convictions for trafficking offences has been small police and
the Crown Office and Procurator Fiscal Service (COPFS) have confirmed that even though it is
not possible to always prove the trafficking offence where a credible suspicion exists people
suspected of involvement with trafficking can and often are prosecuted and convicted for other
crimes such as crimes associated with prostitution forced marriage immigration offences and
drugs offences etc
12 Police Scotland has established a dedicated National Human Trafficking Unit to enhance
the police response to human trafficking through awareness raising intelligence gathering
training and providing divisions with advice and specialist knowledge The COPFS has
appointed dedicated expert fiscals to prosecute human trafficking offences
Support for victims of trafficking
13 The Scottish Government currently allocates direct grant funding to non-government
organisations to provide and facilitate immediate support and assistance to the adult victims of
human trafficking This support can include immediate safe accommodation psychological
support assistance in accessing medical treatment material assistance interpretation and
translation and assistance either with repatriation or securing longer-term access to mainstream
services and support such as welfare benefits and housing The provision of support and
assistance is not conditional on the potential victim being willing to participate in the criminal
justice process Under the NRM victims of trafficking are guaranteed ―a recovery and reflection
period to recover from their experience escape the influence of those alleged to have trafficked
or exploited them and consider whether to engage with authorities The Council of Europe
Convention on Action Against Trafficking in Human Beings8 provides for a reflection period of
at least 30 days for all trafficked victims when there are reasonable grounds to believe that the
person concerned is a victim The current minimum recovery and reflection period in Scotland
and the rest of the UK is 45 days
14 In 2013-14 total grant funding of pound723000 was provided by the Scottish Government
towards the costs of ensuring immediate support and assistance for the adult victims and
potential victims of trafficking in Scotland This funding was provided through two non-
government organisationsmdash
the TARA Service which works with women aged 18 years and over across
Scotland where there are concerns that they have been trafficked for commercial
sexual exploitation and
Migrant Help a UK-wide organisation providing support and advice services to
migrants including new asylum claimants refugees EU nationals etc
15 Support for the child victims of trafficking is co-ordinated by local authorities as part of
their child protection arrangements and in line with the policy intention that children remain
8 httpwwwcoeinttdghlmonitoringtraffickingdocsconvntnCETS197_enasp
26
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
children first and that their needs should be treated accordingly The Scottish Government has
produced a toolkit for agencies working with children and young people to ensure that staff are
able to identify trafficked children and make appropriate referrals so that victims can receive
protection and support The toolkit is designed to be used in conjunction with National Child
Protection Guidance9 which was first published in 2010 and refreshed in 2014 and other
relevant national and international guidance Information about current expenditure on child
victims of trafficking is not recorded separately from information about wider expenditure on
child protection services
Lord Advocate guidance on prosecution policy
16 In his letter of 21 January 2013 to the Scottish Parliament European and External
Relations Committee10
the Lord Advocate set out the current arrangements for fiscals
considering the prosecution of a confirmed or potential victim of human trafficking where it is
believed or claimed that the crime was committed as a direct consequence of the personrsquos
trafficked status The letter set out the basis for the current Lord Advocatersquos guidance to
prosecutors including the presumption against the prosecution of a credible trafficking victim
for crimes that arise as a consequence of the victimrsquos trafficked status
Human trafficking strategic approach awareness raising and training
17 The first Scottish Human Trafficking Summit was hosted by the Cabinet Secretary for
Justice in October 2012 The summit brought together key law enforcement public private and
third sector organisations with an interest in human trafficking Following the summit a number
of strategic collaborative actions were agreed and progressed including with reference to
awareness raising and training for frontline staff data collection and analysis identification care
and support for both child and adult victims of trafficking and enhancing enforcement
18 One specific workstream related to awareness raising and training of front-line staff
likely to come into contact with trafficking victims or potential instances of trafficking
Following the summit Police Scotland with support from the Scottish Government and others
prepared published and circulated widely an awareness raising leaflet ndash Reading the Signs11
ndash to
assist police officers and staff in other front line posts in identifying the signs of potential
trafficking The Scottish Government also participated with the UK Government in a UK-wide
public awareness raising campaign about modern slavery and trafficking
19 In addition to general awareness raising specific training material was prepared for key
front-line staff For example all police officers were required to undertake an e-learning course
on human trafficking A special leaflet for health workers was prepared and circulated by NHS
Health Scotland An e-learning module for health workers about their role in identifying and
9 httpwwwscotlandgovukPublications2014053052
10httpwwwscottishparliamentukS3_EuropeanandExternalRelationsCommitteeGeneral20DocumentsLetterfro
mTheLordAdvocatepdf 11
httpwwwscotlandpoliceukassetspdf174967human-traffickingview=Standard
27
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
responding to victims of trafficking was made available through the National Gender Based
Violence and Health Programme12
IMPACT OF SPECIFIC PROVISIONS
PART 1 - OFFENCES
Single trafficking offence
20 The Bill establishes a new single offence of human trafficking for all types of
exploitation for both adults and children replacing existing separate criminal offences (see
paragraph 9 above) As noted above to date there have been relatively small numbers of
prosecutions under existing trafficking offences
21 The maximum penalty for conviction on indictment for the single trafficking offence will
be life imprisonment compared with a maximum of 14 years for the current separate offences
Although it will be for the court to decide how to sentence people convicted under the new single
offence in any given case it is likely that the availability of a higher maximum sentence will
have cost implications for the Scottish Prison Service (SPS)
Revised slavery servitude and forced labour offence
22 The Bill will also repeal and replace the existing exploitation offence within section 47 of
the 2010 Act which criminalises holding someone in slavery or servitude or requiring them to
perform compulsory or forced labour The offence will be revised and strengthened to allow the
court to consider in assessing whether a person has been a victim of an offence the victimrsquos
characteristics such as age physical or mental illness disability or where relevant family
relationships The maximum penalty for the offence will be increased from 14 years for the
current offence to life imprisonment for a conviction on indictment
Statutory aggravators
23 The Bill makes provision for statutory aggravators which apply in cases where an
accused person commits an offence connected with human trafficking and for when the offence
is committed in connection with the accusedrsquos position as a public official The court must take
the aggravation into account in determining the appropriate sentence if it is proved that the
offence is aggravated in this way The statutory aggravator is not anticipated to have any
substantial financial implications for public private or third sector bodies or for individuals
Costs on the Scottish Administration
24 Consolidating and clarifying the existing criminal law on trafficking and exploitation
alongside other measures arising from the Bill and the trafficking and exploitation strategy
including training and awareness raising and support for victims should increase the potential
for successful investigations prosecutions and convictions of human trafficking and exploitation
offences There have been six successful prosecutions for a specific trafficking offence to date in
Scotland with an average custodial sentence length of two years and four months against a
12
httpwwwgbvscotnhsuk
28
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
maximum possible sentence of 14 years The maximum number of prosecutions in any one year
was four individuals in two separate cases
25 Police and prosecutors already have in place specialist resources for investigating and
prosecuting human trafficking and exploitation offences and these provisions will not add to
these costs Law enforcement agencies have confirmed that whilst the number of prosecutions
for specific trafficking offences has been low where victims are identified but are unwilling to
testify individuals suspected of trafficking and exploitation will be prosecuted in court for other
related offences The Lord Advocate has identified that ―If we donrsquot have the evidence [to
prosecute for a specific human trafficking offence] we prosecute for fraud ID theft or asylum
and immigration offences13
26 The Scottish Government does not anticipate therefore significant additional cost
implications for law enforcement agencies or courts as cases will often proceed with a
trafficking offence alongside or in place of other related offences For the same reason the
Scottish Government does not anticipate significant additional cost on the Scottish Legal Aid
Board (SLAB) However if it is assumed that the number of successful trials proceeding in any
single year doubles from two to four there would be some additional costs on the COPFS the
Scottish Court Service (SCS) and SLAB based on the average unit costs for cases proceeded
either through Sheriff Court Solemn procedure or through the High Court These estimated costs
depending on whether cases are proceeded through the High Court or Sheriff Court solemn
procedure are illustrated in the table below
Table 3 Estimated unit costs of additional trial procedures through either High Court or
Sheriff Court solemn procedure (pound000)
Average prosecution
costs per procedure
(COPFS)
Average court costs
per procedure (SCS)
Average legal aid
costs per procedure
(SLAB)
Sheriff Court solemn
procedure (pound000) pound49 pound19 pound16
High Court (pound000) pound556 pound90 pound135
Estimated average
costs of 2 additional
trial procedures 4
accused per annum
(pound000)
pound99-pound1112 pound38-pound180 pound64-pound540
Source costs of the Criminal Justice System in Scotland Dataset (2013)14
27 There will also be costs to the SPS both through any increase in the number of successful
convictions for trafficking and exploitation offences and an anticipated increase in the average
length of custodial sentence for these crimes It is not possible to know for certain the total
13
httpwwwdailyrecordcouknewsscottish-newsonly-three-successful-prosecutions-brought-4457684 14httpwwwscotlandgovukTopicsStatisticsBrowseCrimeJusticePublicationscostcrimjustsc
otcostcrimjustdatasethttpwwwscotlandgovukTopicsStatisticsBrowseCrimeJusticePublicationscostcrimj
ustscotcostcrimjustdataset
29
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
number of future convictions or what sentencing decisions might be taken by courts in individual
cases
28 The table below illustrates the potential cost implications of either maintaining or
increasing the current maximum number of convictions in any individual year from four to eight
convictions For the purpose of the calculation it is assumed that the average custodial sentence
length for trafficking and exploitation offences will increase from two years and four months
(classified as a short-term sentence) to over four years (classified as a long-term sentence) as
increasing the maximum sentence to life imprisonment is anticipated to increase the average
sentence for a trafficking offence The estimated average annual cost of a prison place based on
SPS figures is pound42500 Taking account of the current early release arrangements for long-term
prisoners and the overlapping of individual sentences would result in an estimated increase of 8
to 21 total prison places each year after four years ndash ie with an additional four people receiving
custodial sentences each year and released by the Parole Board at the halfway point of their
sentence or automatically at the two-thirds point The total costs to the SPS will be within a
range of pound340000 to pound890000 These costs will fit within the overall budget costs to the SPS
As at 17 October 2014 there were 7731 people in custody in Scotland An additional 21 places
accounts for 03 of the total prison population
Table 4 Estimated range of costs to the Scottish Prison Service from increasing the
number and average length of successful prosecutions for trafficking offences
Year 1 Year 2 Year 3 Year 4
Additional Prison places 0-4 4-12 8-17 8-21
Additional Cost (pound000) pound0-pound170 pound170- pound510 pound340-pound720 pound340-pound890
Table 5 Estimated range of combined costs for trial procedures and prison places
Year 1 Year 2 Year 3 Year 4
Additional Cost (pound000) pound20-pound353 pound190- pound693 pound360-pound900 pound360-pound1073
Costs on other bodies individuals and businesses
29 There will be no new costs falling on other bodies individuals and businesses as a
consequence of these sections but see the section below with reference to victim support
Costs on local authorities
30 There will be no new costs falling on local authorities as a consequence of these specific
sections
PART 2 - PROTECTION OF VICTIMS
Duty on the Lord Advocate to publish guidance about the prosecution of credible trafficking and
exploitation victims who have committed offences
Costs on the Scottish Administration
31 As noted above the Lord Advocate already prepares and publishes guidance to fiscals
about the prosecution of credible victims of human trafficking for crimes committed as a direct
30
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
consequence of their trafficking status The requirement to publish such guidance would in
future be statutory However there will be no new costs on the Scottish Government or the
COPFS as a consequence of placing the requirement for the Lord Advocate to issue this
guidance on a statutory basis
Costs on other bodies individuals and businesses
32 There will be no new costs falling on other bodies individuals and businesses as a
consequence of these sections
Costs on local authorities
33 There will be no new costs falling on local authorities as a consequence of these sections
Ensure the rights of victims to access and support
34 The Bill will place a statutory duty on the Scottish Ministers to secure the provision of
relevant immediate support and recovery services for adult victims of trafficking subject to an
assessment of need The Bill will specify those victims or potential victims entitled to support
and the minimum time periods during which such services should be provided Specifically the
Bill will require Ministers to provide support and assistance based on each individualrsquos assessed
needs during the recovery and reflection period (currently 45 days) during which the
individualrsquos trafficking status is determined The Bill specifies minimum support and assistance
that should be considered as part of the assessment including access to housing treatment
interpretation services etc The Scottish Ministers have the flexibility to provide support and
assistance outwith the specified reflection and recovery period where this is considered
appropriate
35 As noted above the Scottish Ministers already provide grant funding totalling pound723000
to third sector organisations to assist identified adult potential victims of trafficking Provision of
support to adult victims will be placed on a statutory basis The number of adult potential victims
of trafficking referred through the NRM during 2013 was 77 although not all of these will have
requested assistance or received the full range of support services It is assumed that other
actions arising from the Bill including the single offence and publication of the trafficking and
exploitation strategy will result over time in an increase in identified victims and requests for
assistance and support
Costs on the Scottish Administration
36 The Scottish Government anticipates that improved awareness raising and training of
front-line staff will result in an increase in the number of victims identified over time It is not
possible to know how quickly this improvement will be achieved However between 2012 and
2013 the number of potential identified victims across the UK identified through the NCA
strategic assessment and NRM increased by 22 and 41 respectively Given the need for
awareness raising and training to impact the Scottish Government does not anticipate a similar
scale of increase in the immediate term but the Government considers it reasonable to anticipate
a possible increase of between 10 and 20 per annum in the overall number of requests for
assistance and support each year over the next four years Assuming a similar mix of needs as
31
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
current victims the increased costs to the Scottish Government on top of existing funding
would range between pound290000 to pound580000 per annum by year four
Table 6 Estimated range of costs increases for victim support and assistance (pound000)
Year 1 Year 2 Year 3 Year 4
Additional Cost (pound000) pound0-pound140 pound140-pound280 pound220-pound430 pound290-pound580
Costs on other bodies individuals and businesses
37 There will be no additional costs on other public bodies individuals or businesses
associated with these specific provisions There will be no direct additional costs falling on third
sector organisations as a consequence of the specific provisions It is likely however that all or
part of the additional funding identified above will be directed by the Scottish Government
through relevant third sector organisations with the expertise to provide immediate support and
protection to victims
Costs on local authorities
38 The Bill creates no new legislative requirements for the delivery of childrenrsquos services
recognising that this already exists It is therefore not anticipated that the Bill will result in any
quantifiable additional costs on local authorities or other public bodies as a result of support for
child victims Child victims of trafficking are supported as part of the Getting It Right for Every
Child (GIRFEC) approach any child whether identified as trafficked or not will be assessed on
the basis of its needs It is anticipated that as a consequence of the strategy (for which the Bill
provides) that more children may be identified as trafficked It is noted however that various
reports including most recently the UK Governmentrsquos NRM Review Report15
have found that
children who are already receiving support from relevant authorities in the UK are often not
identified as trafficked victims because of lack of awareness of the referral process It may be
that actions arising from the development of the strategy and dialogue with stakeholders will
give rise to additional activity or costs with reference to child victims of trafficking but these are
not known and cannot be estimated at this time
PART 3 - CONFISCATION OF PROPERTY
39 The Bill will provide police with powers to detain the property such as cars boats etc of
a person arrested for a trafficking offence This power will be exercised at the time of arrest and
is not expected to impose any additional costs on the police or others
Costs on the Scottish Administration
40 There will be no additional costs on the Scottish Government as a result of these
provisions Individuals can apply to the court to have vehicles ships or aircraft released from
detention This will be considered as part of the overall case and will not add to the costs to the
criminal justice system
15
httpsnrmhomeofficegovuk
32
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
Costs on other bodies individuals and businesses
41 There will be no additional costs on other public bodies individuals or businesses
including Police Scotland as a result of these specific provisions
Costs on local authorities
42 There will be no additional costs on local authorities as a result of these specific
provisions
PART 4 - TRAFFICKING AND EXPLOITATION PREVENTION AND RISK ORDERS
Introduce new measures to disrupt and prevent trafficking and exploitation
43 The Bill will introduce two new civil orders and associated interim orders to assist in
preventing trafficking and exploitation Trafficking and Exploitation Prevention Orders (TEPOs)
and Trafficking and Exploitation Risk Orders (TEROs) Where an individual has been convicted
of a trafficking or exploitation offence or an offence with a statutory trafficking aggravator a
TEPO may be imposed by a court where there is a risk that that individual may commit a further
human trafficking offence and it is necessary to make the order to protect people from the
physical or psychological harm which might occur if such an offence were committed The
TEPO will prevent the individual from engaging in activities described in the order Where a
person has not been convicted of a trafficking or exploitation offence but a court considers that
the person presents a significant risk of harm to others through the individual committing a
trafficking or exploitation offence the court can impose a TERO restricting specific activities or
imposing requirements These orders will be civil but breach of an order will constitute a
criminal offence with a maximum penalty of five years in prison available to the court
44 The Bill will categorise the trafficking and exploitation offences as lifestyle offences in
order to automatically trigger provisions within the Proceeds of Crime Act 2002 (―the 2002
Act) The definition of an offence as a ―lifestyle offence allows for proceedings under the
2002 Act to confiscate assets or monies from the individual convicted of the offence
Costs on the Scottish Administration
45 The purpose of TEPOs and TEROs is to prevent criminal activity associated with
trafficking and exploitation from arising There will be some cost implications for law
enforcement organisations which will need to monitor the terms of any order imposed by the
courts However these will be offset by the savings made from being able to intervene at an
early stage of criminality if an order has been breached For the equivalent civil orders within the
UK Modern Slavery Bill the UK Government has estimated potential net savings of between
pound130000 and pound1090000 per annum The Scottish Government has not incorporated any
savings for the purpose of Scottish legislation but expects the costs of implementing TEPOs and
TEROs and detention powers to be at least cost neutral for the Scottish Administration and other
public bodies
33
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
46 The Bill will give courts powers to impose a TEPO at the time of sentencing There will
be no immediate additional costs for the courts or COPFS associated with TEPOs imposed as
part of sentencing The Chief Constable of Police Scotland will also be able to apply to the court
for a TEPO to be imposed on a relevant offender previously convicted of a trafficking offence
There will be costs to Police Scotland in making the application and to the SCS and to SLAB in
considering the application As there have been only six previous convictions for trafficking
offences in Scotland the Scottish Government expects the number of applications for TEPOs for
previous convictions to be small one-off and will not add to the overall costs of the criminal
justice system The Chief Constable of Police Scotland can also apply to the court for a TERO
against an individual where it is considered that that individual is likely to commit a trafficking
offence
47 Looking at the equivalent costs for similar civil orders eg Sexual Offences Prevention
Orders the total costs to the SCS the COPFS and SLAB of applying for a TERO or post-
sentencing TEPO are estimated at between pound1000 and pound6000 per order It is not possible to
know how many TEPOs or TEROs might be applied for but assuming a number half the level of
the estimated maximum number of potential convictions for trafficking offences each year (four
to eight) would give estimated costs of between pound2000 (2 x pound1000) and pound24000 (4 x pound6000)
per annum
48 There will be costs to Police Scotland in monitoring TEPOs and TEROs whether
imposed at the time of sentence or by application but this will sit alongside Police Scotlandrsquos
existing crime prevention and investigative responsibilities and is not expected to add to
manpower costs
49 In addition to the costs of imposing and monitoring TEPOs and TEROs there will be
costs associated with prosecuting a breach of a TEPO or TERO Analysis in England and Wales
indicates that breaches of equivalent Serious Crime Prevention Orders are relatively low
Assuming one breach per annum the total combined costs to the COPFS the SCS and SLAB
would be between pound8400 and pound78100 per annum (see the combined costs for either sheriff
court or High Court procedures set out in Table 3 above) Assuming a maximum sentence of
five years the costs to the SPS for additional prison places would be between pound85000 and
pound127500 per annum (ie the pound42500 average costs of a prison place times either two or three
places depending on whether offenders are released early at the halfway or two-thirds point of
their sentence)
50 It is important to remember however that the purpose of TEPOs and TEROs is to
prevent further trafficking and exploitation offences occurring A TEPO or TERO will only be
imposed where a court considers that there is a credible risk of an individual committing such a
crime Any costs associated with the imposition and breach of TEPOs and TEROs needs to be
offset against the potential costs of prosecutions If each TEPO or TERO prevents the costs of a
conviction for an offence as set out in Part 1 above the costs to the Scottish Administration
would be at least cost neutral in terms of saved court and prison places expenditure
34
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
Costs on other bodies individuals and businesses
51 There will be no costs on other bodies businesses or other individuals as a consequence
of these sections
Costs on local authorities
52 There will be no new costs on local authorities as a consequence of these sections
PART 5 - STRATEGY AND REPORTING
Ensure a strategic cross-agency approach to tackling trafficking
53 The Bill places a duty on the Scottish Ministers to prepare publish and regularly review
and update a trafficking and exploitation strategy to assist in ensuring a co-ordinated and
strategic approach to this issue The provisions place a duty on Ministers to consult with such
organisations and individuals as they consider to have a relevant interest in the issues of human
trafficking and exploitation The Bill places a duty on relevant public bodies to be named in
regulations to assist in the preparation and review of the strategy
54 The Bill will place a duty on relevant public authorities to provide anonymised data about
potential human trafficking and exploitation victims to Police Scotland
Costs on the Scottish Administration
55 Activity arising from these provisions within the Bill will build on the activity and
current resources already committed to this area of work
56 Based on similar activities the estimated additional costs to the Scottish Ministers of
preparing and reviewing a trafficking and exploitation strategy will be approximately pound25000
every three years Alongside the preparation and publication of the strategy the Scottish
Ministers would also propose to support additional awareness raising and training activity to
build on the existing awareness raising and training activity already undertaken by relevant
organisations including the NHS Police Scotland and COPFS Consideration would be given to
how best to co-ordinate these resources alongside existing expenditure and activity For the
purposes of the Financial Memorandum and based on current activity additional costs on top of
existing activity are estimated at approximately pound100000 to pound250000 per annum over the first
four years of the Bill This is based on the best estimated costs of preparing and publishing
publicity and guidance material averaged over a number of years The exact costs will depend
on decisions taken in dialogue with stakeholders as part of the preparation of the strategy
57 The Scottish Government anticipates that the costs to relevant public authorities of
providing anonymised data about potential human trafficking victims to Police Scotland will be
marginal Costs to Police Scotland of collating this data will form part of their existing
intelligence gathering activity
35
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
Costs on other bodies individuals and businesses
58 There will be some costs on other bodies individuals and businesses in engaging with the
Scottish Ministers in the preparation and publication of the Strategy For business and
individuals this will be voluntary depending on their willingness to engage For public bodies
their level of engagement will depend on the relevance of the issue of trafficking and
exploitation to their work and their potential contribution to combating this behaviour Any
additional costs are expected to fit within or sit alongside their existing responsibilities for
example with reference to promoting and ensuring equalities and the application of human
rights obligations
Costs on local authorities
59 There will be costs on local authorities associated with engaging in the preparation and
review of the trafficking and exploitation strategy and in awareness raising and training of front-
line staff The additional costs should be marginal on top of the existing guidance and activity
already in place with reference to the identification and support of potential child victims of
trafficking The aim will be to minimise costs for other front-line local authority staff by
adapting the general awareness raising and training materials described above
SUMMARY
60 The table below provides a summary of the costs of each element of the Bill as described
above
Table 7 Summary table of costs for each aspect of the Bill (pound000)
Year 1 Year 2 Year 3 Year 4
Clarifying amp
Strengthening the
Criminal Law ndash Para 28 pound20-pound353 pound190- pound693 pound360-pound900 pound360-pound1073
Ensure the rights of
victims to access and
support - Para 36 pound70-pound140 pound140-pound280 pound220-pound430 pound290-pound580
Introduce new measures to
disrupt and prevent
trafficking pound016
pound0 pound0 pound0
Ensure a strategic cross
agency approach to
tackling trafficking ndash Para
56 pound125-pound275 pound100-pound250 pound100-pound250 pound125-pound275
TOTAL pound215-pound768 pound430-pound1223 pound680-pound1580 pound775-pound1928
16
The Scottish Government considers that the overall costs are at least cost neutral ndash see paragraphs 45 to 50
36
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December
SCOTTISH GOVERNMENT STATEMENT ON LEGISLATIVE
COMPETENCE
On 11 December 2014 the Cabinet Secretary for Justice (Michael Matheson MSP) made the
following statement
―In my view the provisions of the Human Trafficking and Exploitation (Scotland) Bill
would be within the legislative competence of the Scottish Parliament
mdashmdashmdashmdashmdashmdashmdashmdashmdashmdash
PRESIDING OFFICERrsquoS STATEMENT ON LEGISLATIVE
COMPETENCE
On 11 December 2014 the Presiding Officer (Rt Hon Tricia Marwick MSP) made the following
statement
―In my view the provisions of the Human Trafficking and Exploitation (Scotland) Bill
would be within the legislative competence of the Scottish Parliament
37
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December
SP Bill 57ndashEN Session 4 (2014)
HUMAN TRAFFICKING AND EXPLOITATION
(SCOTLAND) BILL
EXPLANATORY NOTES
(AND OTHER ACCOMPANYING DOCUMENTS)
Parliamentary copyright Scottish Parliamentary Corporate Body
Information on the Scottish Parliamentrsquos copyright policy can be found on the website -
wwwscottishparliamentuk
Produced and published in Scotland on behalf of the Scottish Parliamentary Corporate Body by APS
Group Scotland
ISBN 978-1-78534-569-2
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
and the chief constable Subsection (6) provides that after taking into account any such
representations the sheriff may then make such an order as the sheriff thinks appropriate
96 Subsection (7) sets out the tests the sheriff must consider when deciding whether to vary
renew or discharge TEPOs on application (including by adding new prohibitions or
requirements) or any prohibitions or requirements within them Those tests reflect the tests for
the making of a TEPO
97 Subsection (8) provides that when determining an application under this section the
sheriff may consider conduct which occurred before this section comes into force
98 Subsection (9) makes it clear that an order varying or renewing a TEPO is subject to the
requirements and prohibitions established by sections 16 and 17 in the same way as the original
order
Section 20 Interim prevention orders
99 Section 20 gives power to a sheriff to make an interim TEPO while the main application
under section 14 is being determined The sheriff may make such an order if the sheriff
considers it just to do so (subsection (1)) and such an order may contain prohibitions or
requirements (or both) in relation to the person in respect of whom the order is to have effect
(subsection (2)) Those prohibitions or requirements may relate to things to be done or not done
in any part of Scotland or anywhere outwith Scotland (subsection (3))
100 Subsection (4) provides that an interim TEPO will only have effect for a fixed period
specified in the order and will cease to have effect on the determination of an application for a
TEPO under section 14 if that fixed period has not expired
101 Subsection (5) allows for an application to a sheriff in the sheriffdom of the sheriff who
made the interim TEPO for variation or discharge of that order Such an application may be
made by the person in respect of whom the order was made or the chief constable
Section 21 Appeals prevention orders
102 Section 21 provides for an appeals process in relation to TEPOs and interim TEPOs
103 Subsection (1) makes provision about TEPOs made on sentencing and any variation or
renewal of such a TEPO These are to be treated as sentences for the purposes of any appeal
104 Subsections (2) (3) and (4) make provision about appeals in relation to TEPOs made on
application any variation or renewal of such a TEPO and interim TEPOs The person in respect
of whom the order was made or the chief constable may appeal against any of these orders
16
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
Trafficking and exploitation risk orders
Section 22 Risk orders
105 Section 22 provides that the chief constable may apply to a sheriff for a trafficking and
exploitation risk order (TERO) against an adult A TERO differs from a TEPO in that it may be
made where a person has not previously been convicted of a trafficking or exploitation offence
but the personrsquos behaviour indicates a risk that others may be at harm as a result of that person
committing such an offence and intervention at an early stage is necessary to prevent that harm
A TEPO can only be made where a relevant offence has already been committed
106 Subsection (2) sets out the appropriate sheriff to whom an application for such an order
may be made
107 Subsection (3) sets out the tests for making a TERO The sheriff may only make an order
if satisfied that the person in respect of whom the order is sought has acted in a way which
means that there is a risk the person may commit a relevant trafficking or exploitation offence
(subsection (3)(a)) and it is necessary to make the prohibitions or requirements in the order for
the purpose of protecting persons generally or particular persons from the physical or
psychological harm which would be likely to occur if the person committed such an offence
(subsection (3)(b))
108 Subsection (4) provides that in assessing those tests the sheriff may consider conduct
which occurred before this section comes into force
Section 23 Contents of risk orders
109 Section 23 makes provision about the prohibitions or requirements (or both) that may be
contained in a TERO Each prohibition and requirement in a TERO is for a fixed period and the
order itself is for a fixed period The orders and the prohibitions or requirements may all be for
the same period However the Bill allows some requirements and prohibitions in the order to be
set for a shorter period if that is appropriate
110 Subsection (2) provides that both the order and any prohibition or requirement in the
order must have a specified fixed period of at least two years However this does not apply to a
prohibition on foreign travel or to an order that contains a prohibition on foreign travel and no
other prohibitions or requirements Such a prohibition (or an order containing only such a
prohibition) must be for a fixed period of no more than five years under section 24(1))
111 Subsection (4) provides that a TERO may prohibit the person in respect of whom the
order is made from doing things or require that person to do things Different prohibitions and
requirements may have effect for different periods
112 Subsection (5) provides that if the sheriff makes a TERO in relation to a person already
subject to such an order the earlier order will cease to have effect
17
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
Section 24 Prohibitions on foreign travel
113 Section 24 makes provision about prohibitions on foreign travel contained in a TERO
114 As noted above subsection (1) provides that a prohibition on foreign travel contained in a
TERO and any TERO which contains such a prohibition and no other prohibitions or
requirements must be for a fixed period of not more than five years
115 Subsection (2) defines a ―prohibition on foreign travel as a prohibition on travelling to
countries outwith the UK (either by reference to particular countries or generally)
116 Subsection (3)(a) determines that a prohibition on foreign travel varied or renewed under
section 25 may be varied or renewed for further fixed periods of no more than five years each
time Subsection (3)(b) requires that an order containing only a foreign travel restriction may be
renewed for up to that fixed period
117 Subsection (4) sets out the requirement on a person in respect of whom a TERO has been
made containing a prohibition on foreign travel to all countries outwith the United Kingdom to
surrender at a police station each passport that the person has Subsection (5) provides that any
passport surrendered must be returned as soon as is reasonably practicable after the person
ceases to be subject to a prohibition on foreign travel to all countries outwith the United
Kingdom Circumstances where this subsection would not apply are provided for at subsection
(6) for example where a passport has already been returned to the relevant authority
Section 25 Variation renewal and discharge of risk orders
118 Section 25 makes provision about the variation renewal or discharge of TEROs
119 Subsections (1) to (3) set out general powers in this context The person in respect of
whom the TERO is made or the chief constable may apply to the sheriff for variation renewal or
discharge of a TERO Subsection (3) makes provision about shrieval jurisdiction in this
connection Where the sheriff receives such an application the sheriff may vary renew or
discharge individual prohibitions or requirements or add new prohibitions or requirements
renew the whole order or discharge the whole order
120 Subsection (4) provides that the sheriff must before making an order under this section
give an opportunity to make representations to the person in respect of whom the order is made
and the chief constable Subsection (5) provides that after taking into account any such
representations the sheriff may then make any order the sheriff considers appropriate
121 Subsection (6) sets out the tests the sheriff must consider when deciding whether to vary
renew or discharge TEROs (including by adding new prohibitions or requirements) or any
prohibitions or requirements within them Subsection (6)(a) applies the tests for the making of a
TERO to any variation (including an increase or a relaxation of a requirement or prohibition)
renewal or addition Subsection (6)(b) applies those tests to any discharge of a prohibition or
requirement or of an order
18
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
Section 26 Interim risk orders
122 Section 26 provides that a sheriff may make an interim TERO while the main application
under section 22 is being determined The sheriff may make such an order if the sheriff
considers it just to do so (subsection (1)) and such an order may contain prohibitions or
requirements (or both) in relation to the person in respect of whom the order is to have effect
(subsection (2)) Those prohibitions or requirements may relate to things to be done or not done
in any part of Scotland or anywhere outwith Scotland (subsection (3))
123 Subsection (4) provides that an interim TERO will only have effect for a fixed period
specified in the order and will cease to have effect on the determination of the main application
if that fixed period has not already expired
124 Subsection (5) allows for an application for variation or discharge of an interim TERO
(or a requirement or prohibition in the order) to be made to a sheriff in the sheriffdom of the
sheriff who made the interim order by the person in respect of whom the order was made or the
chief constable (subsection (6))
Section 27 Appeals risk orders
125 Section 27 provides for an appeals process in relation to TEROs and interim TEROs and
any order varying or renewing such a TERO or interim TERO The person in respect of whom
the order was made or the chief constable may appeal against any of these orders
Offences and supplementary provision
Section 28 Offences
126 Section 28 makes provision about breach of TEPOs and TEROs
127 Subsections (1) and (2) provide that a person commits an offence if that person does
anything which the person is prohibited from doing by an order or fails to do anything which the
person is required to do by a TEPO or a TERO or an interim TEPO or TERO
128 Subsection (3) makes provision about penalties in relation to these offences A person
who commits an offence under this section is liable on summary conviction to imprisonment for
a term not exceeding 12 months or a fine not exceeding the statutory minimum (or both) On
conviction on indictment that person is liable to imprisonment for a term not exceeding five
years or a fine (or both)
Section 29 Enforcement of other UK orders
129 Section 29 provides that the Scottish Ministers may modify by regulations the list of
orders at section 28(2) so that a breach of those orders in Scotland constitutes an offence under
section 28(1) The orders which may be added are ―relevant UK orders Those are described in
subsection (2) as orders under the law of England and Wales or Northern Ireland which appear to
the Scottish Ministers to be equivalent or similar to TEPOs TEROs or interim TEPOs or
TEROs
19
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
Section 30 Interpretation of Part 4
130 Section 30 defines certain terms used in Part 4
PART 5 - STRATEGY AND REPORTING
Section 31 Trafficking and exploitation strategy
131 Section 31 places a duty on the Scottish Ministers to prepare a trafficking and
exploitation strategy The strategy under this section is a strategy which sets out such actions
arrangements and outcomes as the Scottish Ministers consider appropriate in relation to the
conduct which constitutes an offence under this Act
132 Subsection (3) lists some of the matters which may be set out in the strategy though that
list is not exhaustive Those matters include for example training and awareness raising in
relation to the detection and prevention of the conduct which constitutes an offence of human
trafficking or an offence under section 4
Section 32 Review and publication of strategy
133 Subsection (1) of section 32 provides that the strategy prepared under section 31 must be
reviewed by the Scottish Ministers every three years Following a review the Scottish Ministers
are required by subsection (2) to prepare a report on the review including an assessment of the
extent to which the strategy has been complied with and may prepare a revised strategy If a
decision is taken following such a review not to prepare a revised strategy the Scottish Ministers
must set out their reasons for that decision
134 Subsection (4) places a duty on the Scottish Ministers to consult with those likely to have
an interest in the strategy before preparing or reviewing the strategy Those likely to have an
interest include but are not limited to businesses support agencies faith based groups etc
135 Subsection (5) requires the Scottish Ministers to publish and lay before the Scottish
Parliament each strategy and report prepared under this section
Section 33 Duty to co-operate on strategy
136 Section 33 provides that Scottish public authorities as specified in regulations that may
be made by the Scottish Ministers must provide such information and assistance as the Scottish
Ministers may reasonably require and otherwise co-operate with the Scottish Ministers in the
preparation or review of the strategy A specified public authority could include for example
Police Scotland and local authorities
Section 34 Duty to notify and provide information about victims
137 Section 34 places a duty on specified Scottish public authorities to notify the chief
constable of the Police Service of Scotland about a person who is or appears to be a victim of
20
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
an offence under section 1 or section 4 This duty would not affect any other general right to
report information relating to crime
138 Subsection (2) requires that a notification relating to an adult is anonymised and does not
include any information that identifies the adult or enables the adult to be identified unless the
adult consents to that data being provided
139 Subsection (3) provides that the Scottish Ministers may by regulations specify the
Scottish public authorities who are to be subject to this duty and may make provision about the
information to be included in the notification The regulations will be subject to the negative
procedure
PART 6 ndash FINAL PROVISIONS
Section 35 Offences by bodies corporate etc
140 Section 35 provides that where an offence under the Bill was committed by a body
corporate or a Scottish partnership or other unincorporated association and it is proved that the
offence was committed with the consent or connivance of or was attributable to any neglect on
the part of a relevant individual or someone purporting to be acting in the capacity of a relevant
individual that individual as well as the body corporate partnership or unincorporated
association commits the offence and is liable to be proceeded against and punished accordingly
141 Subsection (2) defines what is meant by a ―relevant individual for the purpose of this
section
Section 36 Interpretation
142 Section 36 defines certain terms for the purposes of the Bill for example the definition
of ―travel
Section 37 Regulations
143 The Scottish Ministers are given various powers under this Bill to make regulations
Section 37 provides for the parliamentary procedure which is to be applicable in relation to each
of those powers
Section 38 Ancillary provision
144 Section 38 provides that the Scottish Ministers may make regulations containing such
incidental supplementary consequential transitional transitory or saving provision as they
consider necessary or expedient for the purposes of or in connection with the provisions of the
Bill
21
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
Section 39 Minor and consequential amendments
145 Section 39 introduces the schedule which makes minor amendments and amendments
consequential on the provisions of the Bill Given their replacement in Part 1 of the Bill the
schedule repeals the current offences in relation to human trafficking (section 22 of the 2003 Act
and section 4 of the 2004 Act) and slavery servitude and forced or compulsory labour (section
47 of the 2010 Act)
Section 40 Crown application
146 Section 40(1) provides that none of the provisions made by or under the Act are capable
of making the Crown criminally liable In accordance with subsection (2) enforcement of
offences against the Crown is to be done by the Scottish Ministers or any other public body or
office-holder with responsibility for enforcing the provision applying to the Court of Session for
a civil declarator of non-compliance This provision does not apply to persons in the public
service of the Crown
Section 41 Commencement
147 Section 41 provides that sections 36 37 38 40 41 and 42 of the Bill come into force on
the day after Royal Assent All other provisions are to come into force on a day appointed by
regulations made by the Scottish Ministers
22
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
FINANCIAL MEMORANDUM
INTRODUCTION
1 This document relates to the Human Trafficking and Exploitation (Scotland) Bill (―the
Bill) introduced in the Scottish Parliament on 11 December 2014 It has been prepared by the
Scottish Government to satisfy Rule 932 of the Parliamentrsquos Standing Orders It does not form
part of the Bill and has not been endorsed by the Parliament
2 The purpose of the Bill is to consolidate and strengthen the existing criminal law against
human trafficking and exploitation and enhance the status and support provided to victims Bill
provisions are in the following Partsmdash
Part 1 (Offences) includes provision on the creation of a single offence of human trafficking
for all types of exploitation of both adults and children establishes statutory aggravators of
human trafficking for use with other crimes and reframes the current standalone offence of
slavery servitude and forced or compulsory labour
Part 2 (Protection of victims) includes provision on prosecutorial guidelines for the
prosecution of victims and provision about the support and assistance to which adult victims
are entitled
Part 3 (Confiscation of property) includes provision on detention and forfeiture of property
and proceeds of crime
Part 4 (Trafficking and exploitation prevention and risk orders) includes provision on
two new preventive orders the trafficking and exploitation prevention order and the
trafficking and exploitation risk order
Part 5 (Strategy and reporting) includes provision on the trafficking and exploitation
strategy and the duty on specified Scottish public authorities to notify and provide
information about victims
Part 6 contains general and ancillary provisions
3 This Financial Memorandum considers the financial implications of each of the elements
of the Bill where relevant
BACKGROUND
4 Before considering the financial implications associated with the specific provisions
within the Bill it is important to consider both the current estimated extent of human trafficking
in Scotland and existing activity by public bodies and others in response to this issue
23
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
Extent of human trafficking in Scotland
5 Human trafficking is by its nature a hidden crime The National Referral Mechanism
(NRM) is the process set up by the UK Government to identify and support victims of trafficking
in the UK The NRM is also the mechanism by which the UK Human Trafficking Centre
collects data about potential victims of trafficking Information about suspected child and adult
victims of human trafficking is referred by relevant ―first responder organisations such as the
police and third sector bodies for example Migrant Help and the Trafficking Awareness Raising
Alliance (TARA) Referrals relate to victims trafficked from outside and within the UK The
table below summarises the most recent available information on NRM referrals from first
responder organisations in Scotland
Table 1 Recent referrals from first responders in Scotland of potential child and adult
human trafficking victims to the National Referral Mechanism
2012 2013
Adults 67 77
Children 29 22
Total 96 99
of all UK Referrals 8 6
Source National Crime Agency National Referral Mechanism Statistics 2012 and 20131
6 Various reports confirm that the number of victims referred through the NRM is likely to
be a significant underestimate of the actual number of potential victims of trafficking For
example the Equality and Human Rights Commission Inquiry into Human Trafficking in
Scotland (2011) noted ―estimates of identified potential victims do not reflect what is likely to be
a much greater number of unidentified victims2
7 The UK National Crime Agency (NCA) Strategic Assessment of the Nature and Scale of
Human Trafficking in the UK3 aims to provide an indication of the nature and scale of human
trafficking beyond the number of referrals to the NRM The assessment is produced using
intelligence held by the NCA the NRM and intelligence information collected from agencies
such as Police Scotland the Home Office Gangmastersrsquo Licensing Authority and non-
government organisations The assessment removes information of potential victims referred to
the NRM who have received a negative ―reasonable grounds or ―conclusive decision (ie it
has been confirmed that they are not victims of trafficking) or duplicate information about
individuals (ie the same person has been referred more than once or by more than one agency)
to show a total number of ―unique potential victims of trafficking The NCA Assessment for
2013 indicated that there were significantly more unique potential victims of human trafficking
identified across the UK than the numbers referred to the NRM even excluding those that
received a negative decision and that the number of unique victims was increasing
1 httpwwwnationalcrimeagencygovukpublications399-nca-strategic-assessment-the-nature-and-scale-of-
human-trafficking-in-2013file 2httpwwwequalityhumanrightscomsitesdefaultfilesdocumentsScotlandHuman_Trafficking_in_Scotland_inq
uiry_into_human_trafficking_in_scotland-full-report_pdf_pdf 3 httpwwwnationalcrimeagencygovukpublications399-nca-strategic-assessment-the-nature-and-scale-of-
human-trafficking-in-2013file
24
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
Table 2 Comparison of recent UK referrals to the National Referral Mechanism and the
National Crime Agency Strategic Assessment of the Scale of Human Trafficking
2012 2013 Change
Referred to NRM 778 1095 +41
NCA Assessment No of
Unique Potential Victims
Identified
2255 2744 +22
Source National Crime Agency Strategic Assessment of the Nature and Scale of Human
Trafficking in the UK4
8 For Scotland the NCA Assessment for 2013 identified 55 unique potential victims of
human trafficking compared with 99 referrals to the NRM It is not known why in contrast to
the position in England and Wales the NCA Assessment for Scotland is lower than the NRM
referrals although it will exclude potential victims who received a negative conclusive decision
and duplicate referrals However these numbers must be treated with significant caution There
remains strong conviction amongst law enforcement bodies and victims organisations that there
are more victims of trafficking than are identified and that even once identified victims are
often unwilling to engage with authorities or identify themselves as having been trafficked For
the purpose of this Financial Memorandum the Scottish Government has accepted the NCA
assessment that there are likely to be between two and three times as many potential victims of
trafficking as are currently identified through the NRM This assessment is based on the Scottish
Governmentrsquos best understanding of the hidden nature of this crime and the known reluctance of
some victims to identify their trafficked status or to engage with public authorities
Criminal justice response to human trafficking and exploitation
9 There have been relatively few prosecutions and convictions for human trafficking
offences under existing criminal justice legislationmdash
The Criminal Justice (Scotland) Act 20035 (―the 2003 Act) provides for offences of
trafficking for the purposes of exploitation by way of prostitution
The Asylum and Immigration (Treatment of Claimants etc) Act 20046 (―the 2004
Act) provides for offences of trafficking for labour and other forms of exploitation
The Criminal Justice and Licensing (Scotland) Act 20107 (―the 2010 Act) amended
and extended the 2003 and 2004 Acts and created a standalone offence of holding
someone in slavery or servitude or requiring a person to perform forced or
compulsory labour
10 The first successful convictions for human trafficking in Scotland were in 2011 under
section 22 of the 2003 Act for trafficking for the purposes of prostitution During 2013 a total of
four people were convicted of human trafficking offences - one person under section 22 of the
2003 Act and three people under section 4 of the 2004 Act for trafficking for forced marriage
4 httpwwwnationalcrimeagencygovukpublications399-nca-strategic-assessment-the-nature-and-scale-of-
human-trafficking-in-2013file 5 httpwwwlegislationgovukasp20037
6 httpwwwlegislationgovukukpga200419
7 httpwwwlegislationgovukasp201013
25
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
The average custodial sentence length for those convicted of trafficking offences was 847 days
(just under two years and four months) as well as any confiscation order imposed
11 Although the number of convictions for trafficking offences has been small police and
the Crown Office and Procurator Fiscal Service (COPFS) have confirmed that even though it is
not possible to always prove the trafficking offence where a credible suspicion exists people
suspected of involvement with trafficking can and often are prosecuted and convicted for other
crimes such as crimes associated with prostitution forced marriage immigration offences and
drugs offences etc
12 Police Scotland has established a dedicated National Human Trafficking Unit to enhance
the police response to human trafficking through awareness raising intelligence gathering
training and providing divisions with advice and specialist knowledge The COPFS has
appointed dedicated expert fiscals to prosecute human trafficking offences
Support for victims of trafficking
13 The Scottish Government currently allocates direct grant funding to non-government
organisations to provide and facilitate immediate support and assistance to the adult victims of
human trafficking This support can include immediate safe accommodation psychological
support assistance in accessing medical treatment material assistance interpretation and
translation and assistance either with repatriation or securing longer-term access to mainstream
services and support such as welfare benefits and housing The provision of support and
assistance is not conditional on the potential victim being willing to participate in the criminal
justice process Under the NRM victims of trafficking are guaranteed ―a recovery and reflection
period to recover from their experience escape the influence of those alleged to have trafficked
or exploited them and consider whether to engage with authorities The Council of Europe
Convention on Action Against Trafficking in Human Beings8 provides for a reflection period of
at least 30 days for all trafficked victims when there are reasonable grounds to believe that the
person concerned is a victim The current minimum recovery and reflection period in Scotland
and the rest of the UK is 45 days
14 In 2013-14 total grant funding of pound723000 was provided by the Scottish Government
towards the costs of ensuring immediate support and assistance for the adult victims and
potential victims of trafficking in Scotland This funding was provided through two non-
government organisationsmdash
the TARA Service which works with women aged 18 years and over across
Scotland where there are concerns that they have been trafficked for commercial
sexual exploitation and
Migrant Help a UK-wide organisation providing support and advice services to
migrants including new asylum claimants refugees EU nationals etc
15 Support for the child victims of trafficking is co-ordinated by local authorities as part of
their child protection arrangements and in line with the policy intention that children remain
8 httpwwwcoeinttdghlmonitoringtraffickingdocsconvntnCETS197_enasp
26
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
children first and that their needs should be treated accordingly The Scottish Government has
produced a toolkit for agencies working with children and young people to ensure that staff are
able to identify trafficked children and make appropriate referrals so that victims can receive
protection and support The toolkit is designed to be used in conjunction with National Child
Protection Guidance9 which was first published in 2010 and refreshed in 2014 and other
relevant national and international guidance Information about current expenditure on child
victims of trafficking is not recorded separately from information about wider expenditure on
child protection services
Lord Advocate guidance on prosecution policy
16 In his letter of 21 January 2013 to the Scottish Parliament European and External
Relations Committee10
the Lord Advocate set out the current arrangements for fiscals
considering the prosecution of a confirmed or potential victim of human trafficking where it is
believed or claimed that the crime was committed as a direct consequence of the personrsquos
trafficked status The letter set out the basis for the current Lord Advocatersquos guidance to
prosecutors including the presumption against the prosecution of a credible trafficking victim
for crimes that arise as a consequence of the victimrsquos trafficked status
Human trafficking strategic approach awareness raising and training
17 The first Scottish Human Trafficking Summit was hosted by the Cabinet Secretary for
Justice in October 2012 The summit brought together key law enforcement public private and
third sector organisations with an interest in human trafficking Following the summit a number
of strategic collaborative actions were agreed and progressed including with reference to
awareness raising and training for frontline staff data collection and analysis identification care
and support for both child and adult victims of trafficking and enhancing enforcement
18 One specific workstream related to awareness raising and training of front-line staff
likely to come into contact with trafficking victims or potential instances of trafficking
Following the summit Police Scotland with support from the Scottish Government and others
prepared published and circulated widely an awareness raising leaflet ndash Reading the Signs11
ndash to
assist police officers and staff in other front line posts in identifying the signs of potential
trafficking The Scottish Government also participated with the UK Government in a UK-wide
public awareness raising campaign about modern slavery and trafficking
19 In addition to general awareness raising specific training material was prepared for key
front-line staff For example all police officers were required to undertake an e-learning course
on human trafficking A special leaflet for health workers was prepared and circulated by NHS
Health Scotland An e-learning module for health workers about their role in identifying and
9 httpwwwscotlandgovukPublications2014053052
10httpwwwscottishparliamentukS3_EuropeanandExternalRelationsCommitteeGeneral20DocumentsLetterfro
mTheLordAdvocatepdf 11
httpwwwscotlandpoliceukassetspdf174967human-traffickingview=Standard
27
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
responding to victims of trafficking was made available through the National Gender Based
Violence and Health Programme12
IMPACT OF SPECIFIC PROVISIONS
PART 1 - OFFENCES
Single trafficking offence
20 The Bill establishes a new single offence of human trafficking for all types of
exploitation for both adults and children replacing existing separate criminal offences (see
paragraph 9 above) As noted above to date there have been relatively small numbers of
prosecutions under existing trafficking offences
21 The maximum penalty for conviction on indictment for the single trafficking offence will
be life imprisonment compared with a maximum of 14 years for the current separate offences
Although it will be for the court to decide how to sentence people convicted under the new single
offence in any given case it is likely that the availability of a higher maximum sentence will
have cost implications for the Scottish Prison Service (SPS)
Revised slavery servitude and forced labour offence
22 The Bill will also repeal and replace the existing exploitation offence within section 47 of
the 2010 Act which criminalises holding someone in slavery or servitude or requiring them to
perform compulsory or forced labour The offence will be revised and strengthened to allow the
court to consider in assessing whether a person has been a victim of an offence the victimrsquos
characteristics such as age physical or mental illness disability or where relevant family
relationships The maximum penalty for the offence will be increased from 14 years for the
current offence to life imprisonment for a conviction on indictment
Statutory aggravators
23 The Bill makes provision for statutory aggravators which apply in cases where an
accused person commits an offence connected with human trafficking and for when the offence
is committed in connection with the accusedrsquos position as a public official The court must take
the aggravation into account in determining the appropriate sentence if it is proved that the
offence is aggravated in this way The statutory aggravator is not anticipated to have any
substantial financial implications for public private or third sector bodies or for individuals
Costs on the Scottish Administration
24 Consolidating and clarifying the existing criminal law on trafficking and exploitation
alongside other measures arising from the Bill and the trafficking and exploitation strategy
including training and awareness raising and support for victims should increase the potential
for successful investigations prosecutions and convictions of human trafficking and exploitation
offences There have been six successful prosecutions for a specific trafficking offence to date in
Scotland with an average custodial sentence length of two years and four months against a
12
httpwwwgbvscotnhsuk
28
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
maximum possible sentence of 14 years The maximum number of prosecutions in any one year
was four individuals in two separate cases
25 Police and prosecutors already have in place specialist resources for investigating and
prosecuting human trafficking and exploitation offences and these provisions will not add to
these costs Law enforcement agencies have confirmed that whilst the number of prosecutions
for specific trafficking offences has been low where victims are identified but are unwilling to
testify individuals suspected of trafficking and exploitation will be prosecuted in court for other
related offences The Lord Advocate has identified that ―If we donrsquot have the evidence [to
prosecute for a specific human trafficking offence] we prosecute for fraud ID theft or asylum
and immigration offences13
26 The Scottish Government does not anticipate therefore significant additional cost
implications for law enforcement agencies or courts as cases will often proceed with a
trafficking offence alongside or in place of other related offences For the same reason the
Scottish Government does not anticipate significant additional cost on the Scottish Legal Aid
Board (SLAB) However if it is assumed that the number of successful trials proceeding in any
single year doubles from two to four there would be some additional costs on the COPFS the
Scottish Court Service (SCS) and SLAB based on the average unit costs for cases proceeded
either through Sheriff Court Solemn procedure or through the High Court These estimated costs
depending on whether cases are proceeded through the High Court or Sheriff Court solemn
procedure are illustrated in the table below
Table 3 Estimated unit costs of additional trial procedures through either High Court or
Sheriff Court solemn procedure (pound000)
Average prosecution
costs per procedure
(COPFS)
Average court costs
per procedure (SCS)
Average legal aid
costs per procedure
(SLAB)
Sheriff Court solemn
procedure (pound000) pound49 pound19 pound16
High Court (pound000) pound556 pound90 pound135
Estimated average
costs of 2 additional
trial procedures 4
accused per annum
(pound000)
pound99-pound1112 pound38-pound180 pound64-pound540
Source costs of the Criminal Justice System in Scotland Dataset (2013)14
27 There will also be costs to the SPS both through any increase in the number of successful
convictions for trafficking and exploitation offences and an anticipated increase in the average
length of custodial sentence for these crimes It is not possible to know for certain the total
13
httpwwwdailyrecordcouknewsscottish-newsonly-three-successful-prosecutions-brought-4457684 14httpwwwscotlandgovukTopicsStatisticsBrowseCrimeJusticePublicationscostcrimjustsc
otcostcrimjustdatasethttpwwwscotlandgovukTopicsStatisticsBrowseCrimeJusticePublicationscostcrimj
ustscotcostcrimjustdataset
29
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
number of future convictions or what sentencing decisions might be taken by courts in individual
cases
28 The table below illustrates the potential cost implications of either maintaining or
increasing the current maximum number of convictions in any individual year from four to eight
convictions For the purpose of the calculation it is assumed that the average custodial sentence
length for trafficking and exploitation offences will increase from two years and four months
(classified as a short-term sentence) to over four years (classified as a long-term sentence) as
increasing the maximum sentence to life imprisonment is anticipated to increase the average
sentence for a trafficking offence The estimated average annual cost of a prison place based on
SPS figures is pound42500 Taking account of the current early release arrangements for long-term
prisoners and the overlapping of individual sentences would result in an estimated increase of 8
to 21 total prison places each year after four years ndash ie with an additional four people receiving
custodial sentences each year and released by the Parole Board at the halfway point of their
sentence or automatically at the two-thirds point The total costs to the SPS will be within a
range of pound340000 to pound890000 These costs will fit within the overall budget costs to the SPS
As at 17 October 2014 there were 7731 people in custody in Scotland An additional 21 places
accounts for 03 of the total prison population
Table 4 Estimated range of costs to the Scottish Prison Service from increasing the
number and average length of successful prosecutions for trafficking offences
Year 1 Year 2 Year 3 Year 4
Additional Prison places 0-4 4-12 8-17 8-21
Additional Cost (pound000) pound0-pound170 pound170- pound510 pound340-pound720 pound340-pound890
Table 5 Estimated range of combined costs for trial procedures and prison places
Year 1 Year 2 Year 3 Year 4
Additional Cost (pound000) pound20-pound353 pound190- pound693 pound360-pound900 pound360-pound1073
Costs on other bodies individuals and businesses
29 There will be no new costs falling on other bodies individuals and businesses as a
consequence of these sections but see the section below with reference to victim support
Costs on local authorities
30 There will be no new costs falling on local authorities as a consequence of these specific
sections
PART 2 - PROTECTION OF VICTIMS
Duty on the Lord Advocate to publish guidance about the prosecution of credible trafficking and
exploitation victims who have committed offences
Costs on the Scottish Administration
31 As noted above the Lord Advocate already prepares and publishes guidance to fiscals
about the prosecution of credible victims of human trafficking for crimes committed as a direct
30
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
consequence of their trafficking status The requirement to publish such guidance would in
future be statutory However there will be no new costs on the Scottish Government or the
COPFS as a consequence of placing the requirement for the Lord Advocate to issue this
guidance on a statutory basis
Costs on other bodies individuals and businesses
32 There will be no new costs falling on other bodies individuals and businesses as a
consequence of these sections
Costs on local authorities
33 There will be no new costs falling on local authorities as a consequence of these sections
Ensure the rights of victims to access and support
34 The Bill will place a statutory duty on the Scottish Ministers to secure the provision of
relevant immediate support and recovery services for adult victims of trafficking subject to an
assessment of need The Bill will specify those victims or potential victims entitled to support
and the minimum time periods during which such services should be provided Specifically the
Bill will require Ministers to provide support and assistance based on each individualrsquos assessed
needs during the recovery and reflection period (currently 45 days) during which the
individualrsquos trafficking status is determined The Bill specifies minimum support and assistance
that should be considered as part of the assessment including access to housing treatment
interpretation services etc The Scottish Ministers have the flexibility to provide support and
assistance outwith the specified reflection and recovery period where this is considered
appropriate
35 As noted above the Scottish Ministers already provide grant funding totalling pound723000
to third sector organisations to assist identified adult potential victims of trafficking Provision of
support to adult victims will be placed on a statutory basis The number of adult potential victims
of trafficking referred through the NRM during 2013 was 77 although not all of these will have
requested assistance or received the full range of support services It is assumed that other
actions arising from the Bill including the single offence and publication of the trafficking and
exploitation strategy will result over time in an increase in identified victims and requests for
assistance and support
Costs on the Scottish Administration
36 The Scottish Government anticipates that improved awareness raising and training of
front-line staff will result in an increase in the number of victims identified over time It is not
possible to know how quickly this improvement will be achieved However between 2012 and
2013 the number of potential identified victims across the UK identified through the NCA
strategic assessment and NRM increased by 22 and 41 respectively Given the need for
awareness raising and training to impact the Scottish Government does not anticipate a similar
scale of increase in the immediate term but the Government considers it reasonable to anticipate
a possible increase of between 10 and 20 per annum in the overall number of requests for
assistance and support each year over the next four years Assuming a similar mix of needs as
31
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
current victims the increased costs to the Scottish Government on top of existing funding
would range between pound290000 to pound580000 per annum by year four
Table 6 Estimated range of costs increases for victim support and assistance (pound000)
Year 1 Year 2 Year 3 Year 4
Additional Cost (pound000) pound0-pound140 pound140-pound280 pound220-pound430 pound290-pound580
Costs on other bodies individuals and businesses
37 There will be no additional costs on other public bodies individuals or businesses
associated with these specific provisions There will be no direct additional costs falling on third
sector organisations as a consequence of the specific provisions It is likely however that all or
part of the additional funding identified above will be directed by the Scottish Government
through relevant third sector organisations with the expertise to provide immediate support and
protection to victims
Costs on local authorities
38 The Bill creates no new legislative requirements for the delivery of childrenrsquos services
recognising that this already exists It is therefore not anticipated that the Bill will result in any
quantifiable additional costs on local authorities or other public bodies as a result of support for
child victims Child victims of trafficking are supported as part of the Getting It Right for Every
Child (GIRFEC) approach any child whether identified as trafficked or not will be assessed on
the basis of its needs It is anticipated that as a consequence of the strategy (for which the Bill
provides) that more children may be identified as trafficked It is noted however that various
reports including most recently the UK Governmentrsquos NRM Review Report15
have found that
children who are already receiving support from relevant authorities in the UK are often not
identified as trafficked victims because of lack of awareness of the referral process It may be
that actions arising from the development of the strategy and dialogue with stakeholders will
give rise to additional activity or costs with reference to child victims of trafficking but these are
not known and cannot be estimated at this time
PART 3 - CONFISCATION OF PROPERTY
39 The Bill will provide police with powers to detain the property such as cars boats etc of
a person arrested for a trafficking offence This power will be exercised at the time of arrest and
is not expected to impose any additional costs on the police or others
Costs on the Scottish Administration
40 There will be no additional costs on the Scottish Government as a result of these
provisions Individuals can apply to the court to have vehicles ships or aircraft released from
detention This will be considered as part of the overall case and will not add to the costs to the
criminal justice system
15
httpsnrmhomeofficegovuk
32
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
Costs on other bodies individuals and businesses
41 There will be no additional costs on other public bodies individuals or businesses
including Police Scotland as a result of these specific provisions
Costs on local authorities
42 There will be no additional costs on local authorities as a result of these specific
provisions
PART 4 - TRAFFICKING AND EXPLOITATION PREVENTION AND RISK ORDERS
Introduce new measures to disrupt and prevent trafficking and exploitation
43 The Bill will introduce two new civil orders and associated interim orders to assist in
preventing trafficking and exploitation Trafficking and Exploitation Prevention Orders (TEPOs)
and Trafficking and Exploitation Risk Orders (TEROs) Where an individual has been convicted
of a trafficking or exploitation offence or an offence with a statutory trafficking aggravator a
TEPO may be imposed by a court where there is a risk that that individual may commit a further
human trafficking offence and it is necessary to make the order to protect people from the
physical or psychological harm which might occur if such an offence were committed The
TEPO will prevent the individual from engaging in activities described in the order Where a
person has not been convicted of a trafficking or exploitation offence but a court considers that
the person presents a significant risk of harm to others through the individual committing a
trafficking or exploitation offence the court can impose a TERO restricting specific activities or
imposing requirements These orders will be civil but breach of an order will constitute a
criminal offence with a maximum penalty of five years in prison available to the court
44 The Bill will categorise the trafficking and exploitation offences as lifestyle offences in
order to automatically trigger provisions within the Proceeds of Crime Act 2002 (―the 2002
Act) The definition of an offence as a ―lifestyle offence allows for proceedings under the
2002 Act to confiscate assets or monies from the individual convicted of the offence
Costs on the Scottish Administration
45 The purpose of TEPOs and TEROs is to prevent criminal activity associated with
trafficking and exploitation from arising There will be some cost implications for law
enforcement organisations which will need to monitor the terms of any order imposed by the
courts However these will be offset by the savings made from being able to intervene at an
early stage of criminality if an order has been breached For the equivalent civil orders within the
UK Modern Slavery Bill the UK Government has estimated potential net savings of between
pound130000 and pound1090000 per annum The Scottish Government has not incorporated any
savings for the purpose of Scottish legislation but expects the costs of implementing TEPOs and
TEROs and detention powers to be at least cost neutral for the Scottish Administration and other
public bodies
33
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
46 The Bill will give courts powers to impose a TEPO at the time of sentencing There will
be no immediate additional costs for the courts or COPFS associated with TEPOs imposed as
part of sentencing The Chief Constable of Police Scotland will also be able to apply to the court
for a TEPO to be imposed on a relevant offender previously convicted of a trafficking offence
There will be costs to Police Scotland in making the application and to the SCS and to SLAB in
considering the application As there have been only six previous convictions for trafficking
offences in Scotland the Scottish Government expects the number of applications for TEPOs for
previous convictions to be small one-off and will not add to the overall costs of the criminal
justice system The Chief Constable of Police Scotland can also apply to the court for a TERO
against an individual where it is considered that that individual is likely to commit a trafficking
offence
47 Looking at the equivalent costs for similar civil orders eg Sexual Offences Prevention
Orders the total costs to the SCS the COPFS and SLAB of applying for a TERO or post-
sentencing TEPO are estimated at between pound1000 and pound6000 per order It is not possible to
know how many TEPOs or TEROs might be applied for but assuming a number half the level of
the estimated maximum number of potential convictions for trafficking offences each year (four
to eight) would give estimated costs of between pound2000 (2 x pound1000) and pound24000 (4 x pound6000)
per annum
48 There will be costs to Police Scotland in monitoring TEPOs and TEROs whether
imposed at the time of sentence or by application but this will sit alongside Police Scotlandrsquos
existing crime prevention and investigative responsibilities and is not expected to add to
manpower costs
49 In addition to the costs of imposing and monitoring TEPOs and TEROs there will be
costs associated with prosecuting a breach of a TEPO or TERO Analysis in England and Wales
indicates that breaches of equivalent Serious Crime Prevention Orders are relatively low
Assuming one breach per annum the total combined costs to the COPFS the SCS and SLAB
would be between pound8400 and pound78100 per annum (see the combined costs for either sheriff
court or High Court procedures set out in Table 3 above) Assuming a maximum sentence of
five years the costs to the SPS for additional prison places would be between pound85000 and
pound127500 per annum (ie the pound42500 average costs of a prison place times either two or three
places depending on whether offenders are released early at the halfway or two-thirds point of
their sentence)
50 It is important to remember however that the purpose of TEPOs and TEROs is to
prevent further trafficking and exploitation offences occurring A TEPO or TERO will only be
imposed where a court considers that there is a credible risk of an individual committing such a
crime Any costs associated with the imposition and breach of TEPOs and TEROs needs to be
offset against the potential costs of prosecutions If each TEPO or TERO prevents the costs of a
conviction for an offence as set out in Part 1 above the costs to the Scottish Administration
would be at least cost neutral in terms of saved court and prison places expenditure
34
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
Costs on other bodies individuals and businesses
51 There will be no costs on other bodies businesses or other individuals as a consequence
of these sections
Costs on local authorities
52 There will be no new costs on local authorities as a consequence of these sections
PART 5 - STRATEGY AND REPORTING
Ensure a strategic cross-agency approach to tackling trafficking
53 The Bill places a duty on the Scottish Ministers to prepare publish and regularly review
and update a trafficking and exploitation strategy to assist in ensuring a co-ordinated and
strategic approach to this issue The provisions place a duty on Ministers to consult with such
organisations and individuals as they consider to have a relevant interest in the issues of human
trafficking and exploitation The Bill places a duty on relevant public bodies to be named in
regulations to assist in the preparation and review of the strategy
54 The Bill will place a duty on relevant public authorities to provide anonymised data about
potential human trafficking and exploitation victims to Police Scotland
Costs on the Scottish Administration
55 Activity arising from these provisions within the Bill will build on the activity and
current resources already committed to this area of work
56 Based on similar activities the estimated additional costs to the Scottish Ministers of
preparing and reviewing a trafficking and exploitation strategy will be approximately pound25000
every three years Alongside the preparation and publication of the strategy the Scottish
Ministers would also propose to support additional awareness raising and training activity to
build on the existing awareness raising and training activity already undertaken by relevant
organisations including the NHS Police Scotland and COPFS Consideration would be given to
how best to co-ordinate these resources alongside existing expenditure and activity For the
purposes of the Financial Memorandum and based on current activity additional costs on top of
existing activity are estimated at approximately pound100000 to pound250000 per annum over the first
four years of the Bill This is based on the best estimated costs of preparing and publishing
publicity and guidance material averaged over a number of years The exact costs will depend
on decisions taken in dialogue with stakeholders as part of the preparation of the strategy
57 The Scottish Government anticipates that the costs to relevant public authorities of
providing anonymised data about potential human trafficking victims to Police Scotland will be
marginal Costs to Police Scotland of collating this data will form part of their existing
intelligence gathering activity
35
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
Costs on other bodies individuals and businesses
58 There will be some costs on other bodies individuals and businesses in engaging with the
Scottish Ministers in the preparation and publication of the Strategy For business and
individuals this will be voluntary depending on their willingness to engage For public bodies
their level of engagement will depend on the relevance of the issue of trafficking and
exploitation to their work and their potential contribution to combating this behaviour Any
additional costs are expected to fit within or sit alongside their existing responsibilities for
example with reference to promoting and ensuring equalities and the application of human
rights obligations
Costs on local authorities
59 There will be costs on local authorities associated with engaging in the preparation and
review of the trafficking and exploitation strategy and in awareness raising and training of front-
line staff The additional costs should be marginal on top of the existing guidance and activity
already in place with reference to the identification and support of potential child victims of
trafficking The aim will be to minimise costs for other front-line local authority staff by
adapting the general awareness raising and training materials described above
SUMMARY
60 The table below provides a summary of the costs of each element of the Bill as described
above
Table 7 Summary table of costs for each aspect of the Bill (pound000)
Year 1 Year 2 Year 3 Year 4
Clarifying amp
Strengthening the
Criminal Law ndash Para 28 pound20-pound353 pound190- pound693 pound360-pound900 pound360-pound1073
Ensure the rights of
victims to access and
support - Para 36 pound70-pound140 pound140-pound280 pound220-pound430 pound290-pound580
Introduce new measures to
disrupt and prevent
trafficking pound016
pound0 pound0 pound0
Ensure a strategic cross
agency approach to
tackling trafficking ndash Para
56 pound125-pound275 pound100-pound250 pound100-pound250 pound125-pound275
TOTAL pound215-pound768 pound430-pound1223 pound680-pound1580 pound775-pound1928
16
The Scottish Government considers that the overall costs are at least cost neutral ndash see paragraphs 45 to 50
36
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December
SCOTTISH GOVERNMENT STATEMENT ON LEGISLATIVE
COMPETENCE
On 11 December 2014 the Cabinet Secretary for Justice (Michael Matheson MSP) made the
following statement
―In my view the provisions of the Human Trafficking and Exploitation (Scotland) Bill
would be within the legislative competence of the Scottish Parliament
mdashmdashmdashmdashmdashmdashmdashmdashmdashmdash
PRESIDING OFFICERrsquoS STATEMENT ON LEGISLATIVE
COMPETENCE
On 11 December 2014 the Presiding Officer (Rt Hon Tricia Marwick MSP) made the following
statement
―In my view the provisions of the Human Trafficking and Exploitation (Scotland) Bill
would be within the legislative competence of the Scottish Parliament
37
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December
SP Bill 57ndashEN Session 4 (2014)
HUMAN TRAFFICKING AND EXPLOITATION
(SCOTLAND) BILL
EXPLANATORY NOTES
(AND OTHER ACCOMPANYING DOCUMENTS)
Parliamentary copyright Scottish Parliamentary Corporate Body
Information on the Scottish Parliamentrsquos copyright policy can be found on the website -
wwwscottishparliamentuk
Produced and published in Scotland on behalf of the Scottish Parliamentary Corporate Body by APS
Group Scotland
ISBN 978-1-78534-569-2
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
Trafficking and exploitation risk orders
Section 22 Risk orders
105 Section 22 provides that the chief constable may apply to a sheriff for a trafficking and
exploitation risk order (TERO) against an adult A TERO differs from a TEPO in that it may be
made where a person has not previously been convicted of a trafficking or exploitation offence
but the personrsquos behaviour indicates a risk that others may be at harm as a result of that person
committing such an offence and intervention at an early stage is necessary to prevent that harm
A TEPO can only be made where a relevant offence has already been committed
106 Subsection (2) sets out the appropriate sheriff to whom an application for such an order
may be made
107 Subsection (3) sets out the tests for making a TERO The sheriff may only make an order
if satisfied that the person in respect of whom the order is sought has acted in a way which
means that there is a risk the person may commit a relevant trafficking or exploitation offence
(subsection (3)(a)) and it is necessary to make the prohibitions or requirements in the order for
the purpose of protecting persons generally or particular persons from the physical or
psychological harm which would be likely to occur if the person committed such an offence
(subsection (3)(b))
108 Subsection (4) provides that in assessing those tests the sheriff may consider conduct
which occurred before this section comes into force
Section 23 Contents of risk orders
109 Section 23 makes provision about the prohibitions or requirements (or both) that may be
contained in a TERO Each prohibition and requirement in a TERO is for a fixed period and the
order itself is for a fixed period The orders and the prohibitions or requirements may all be for
the same period However the Bill allows some requirements and prohibitions in the order to be
set for a shorter period if that is appropriate
110 Subsection (2) provides that both the order and any prohibition or requirement in the
order must have a specified fixed period of at least two years However this does not apply to a
prohibition on foreign travel or to an order that contains a prohibition on foreign travel and no
other prohibitions or requirements Such a prohibition (or an order containing only such a
prohibition) must be for a fixed period of no more than five years under section 24(1))
111 Subsection (4) provides that a TERO may prohibit the person in respect of whom the
order is made from doing things or require that person to do things Different prohibitions and
requirements may have effect for different periods
112 Subsection (5) provides that if the sheriff makes a TERO in relation to a person already
subject to such an order the earlier order will cease to have effect
17
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
Section 24 Prohibitions on foreign travel
113 Section 24 makes provision about prohibitions on foreign travel contained in a TERO
114 As noted above subsection (1) provides that a prohibition on foreign travel contained in a
TERO and any TERO which contains such a prohibition and no other prohibitions or
requirements must be for a fixed period of not more than five years
115 Subsection (2) defines a ―prohibition on foreign travel as a prohibition on travelling to
countries outwith the UK (either by reference to particular countries or generally)
116 Subsection (3)(a) determines that a prohibition on foreign travel varied or renewed under
section 25 may be varied or renewed for further fixed periods of no more than five years each
time Subsection (3)(b) requires that an order containing only a foreign travel restriction may be
renewed for up to that fixed period
117 Subsection (4) sets out the requirement on a person in respect of whom a TERO has been
made containing a prohibition on foreign travel to all countries outwith the United Kingdom to
surrender at a police station each passport that the person has Subsection (5) provides that any
passport surrendered must be returned as soon as is reasonably practicable after the person
ceases to be subject to a prohibition on foreign travel to all countries outwith the United
Kingdom Circumstances where this subsection would not apply are provided for at subsection
(6) for example where a passport has already been returned to the relevant authority
Section 25 Variation renewal and discharge of risk orders
118 Section 25 makes provision about the variation renewal or discharge of TEROs
119 Subsections (1) to (3) set out general powers in this context The person in respect of
whom the TERO is made or the chief constable may apply to the sheriff for variation renewal or
discharge of a TERO Subsection (3) makes provision about shrieval jurisdiction in this
connection Where the sheriff receives such an application the sheriff may vary renew or
discharge individual prohibitions or requirements or add new prohibitions or requirements
renew the whole order or discharge the whole order
120 Subsection (4) provides that the sheriff must before making an order under this section
give an opportunity to make representations to the person in respect of whom the order is made
and the chief constable Subsection (5) provides that after taking into account any such
representations the sheriff may then make any order the sheriff considers appropriate
121 Subsection (6) sets out the tests the sheriff must consider when deciding whether to vary
renew or discharge TEROs (including by adding new prohibitions or requirements) or any
prohibitions or requirements within them Subsection (6)(a) applies the tests for the making of a
TERO to any variation (including an increase or a relaxation of a requirement or prohibition)
renewal or addition Subsection (6)(b) applies those tests to any discharge of a prohibition or
requirement or of an order
18
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
Section 26 Interim risk orders
122 Section 26 provides that a sheriff may make an interim TERO while the main application
under section 22 is being determined The sheriff may make such an order if the sheriff
considers it just to do so (subsection (1)) and such an order may contain prohibitions or
requirements (or both) in relation to the person in respect of whom the order is to have effect
(subsection (2)) Those prohibitions or requirements may relate to things to be done or not done
in any part of Scotland or anywhere outwith Scotland (subsection (3))
123 Subsection (4) provides that an interim TERO will only have effect for a fixed period
specified in the order and will cease to have effect on the determination of the main application
if that fixed period has not already expired
124 Subsection (5) allows for an application for variation or discharge of an interim TERO
(or a requirement or prohibition in the order) to be made to a sheriff in the sheriffdom of the
sheriff who made the interim order by the person in respect of whom the order was made or the
chief constable (subsection (6))
Section 27 Appeals risk orders
125 Section 27 provides for an appeals process in relation to TEROs and interim TEROs and
any order varying or renewing such a TERO or interim TERO The person in respect of whom
the order was made or the chief constable may appeal against any of these orders
Offences and supplementary provision
Section 28 Offences
126 Section 28 makes provision about breach of TEPOs and TEROs
127 Subsections (1) and (2) provide that a person commits an offence if that person does
anything which the person is prohibited from doing by an order or fails to do anything which the
person is required to do by a TEPO or a TERO or an interim TEPO or TERO
128 Subsection (3) makes provision about penalties in relation to these offences A person
who commits an offence under this section is liable on summary conviction to imprisonment for
a term not exceeding 12 months or a fine not exceeding the statutory minimum (or both) On
conviction on indictment that person is liable to imprisonment for a term not exceeding five
years or a fine (or both)
Section 29 Enforcement of other UK orders
129 Section 29 provides that the Scottish Ministers may modify by regulations the list of
orders at section 28(2) so that a breach of those orders in Scotland constitutes an offence under
section 28(1) The orders which may be added are ―relevant UK orders Those are described in
subsection (2) as orders under the law of England and Wales or Northern Ireland which appear to
the Scottish Ministers to be equivalent or similar to TEPOs TEROs or interim TEPOs or
TEROs
19
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
Section 30 Interpretation of Part 4
130 Section 30 defines certain terms used in Part 4
PART 5 - STRATEGY AND REPORTING
Section 31 Trafficking and exploitation strategy
131 Section 31 places a duty on the Scottish Ministers to prepare a trafficking and
exploitation strategy The strategy under this section is a strategy which sets out such actions
arrangements and outcomes as the Scottish Ministers consider appropriate in relation to the
conduct which constitutes an offence under this Act
132 Subsection (3) lists some of the matters which may be set out in the strategy though that
list is not exhaustive Those matters include for example training and awareness raising in
relation to the detection and prevention of the conduct which constitutes an offence of human
trafficking or an offence under section 4
Section 32 Review and publication of strategy
133 Subsection (1) of section 32 provides that the strategy prepared under section 31 must be
reviewed by the Scottish Ministers every three years Following a review the Scottish Ministers
are required by subsection (2) to prepare a report on the review including an assessment of the
extent to which the strategy has been complied with and may prepare a revised strategy If a
decision is taken following such a review not to prepare a revised strategy the Scottish Ministers
must set out their reasons for that decision
134 Subsection (4) places a duty on the Scottish Ministers to consult with those likely to have
an interest in the strategy before preparing or reviewing the strategy Those likely to have an
interest include but are not limited to businesses support agencies faith based groups etc
135 Subsection (5) requires the Scottish Ministers to publish and lay before the Scottish
Parliament each strategy and report prepared under this section
Section 33 Duty to co-operate on strategy
136 Section 33 provides that Scottish public authorities as specified in regulations that may
be made by the Scottish Ministers must provide such information and assistance as the Scottish
Ministers may reasonably require and otherwise co-operate with the Scottish Ministers in the
preparation or review of the strategy A specified public authority could include for example
Police Scotland and local authorities
Section 34 Duty to notify and provide information about victims
137 Section 34 places a duty on specified Scottish public authorities to notify the chief
constable of the Police Service of Scotland about a person who is or appears to be a victim of
20
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
an offence under section 1 or section 4 This duty would not affect any other general right to
report information relating to crime
138 Subsection (2) requires that a notification relating to an adult is anonymised and does not
include any information that identifies the adult or enables the adult to be identified unless the
adult consents to that data being provided
139 Subsection (3) provides that the Scottish Ministers may by regulations specify the
Scottish public authorities who are to be subject to this duty and may make provision about the
information to be included in the notification The regulations will be subject to the negative
procedure
PART 6 ndash FINAL PROVISIONS
Section 35 Offences by bodies corporate etc
140 Section 35 provides that where an offence under the Bill was committed by a body
corporate or a Scottish partnership or other unincorporated association and it is proved that the
offence was committed with the consent or connivance of or was attributable to any neglect on
the part of a relevant individual or someone purporting to be acting in the capacity of a relevant
individual that individual as well as the body corporate partnership or unincorporated
association commits the offence and is liable to be proceeded against and punished accordingly
141 Subsection (2) defines what is meant by a ―relevant individual for the purpose of this
section
Section 36 Interpretation
142 Section 36 defines certain terms for the purposes of the Bill for example the definition
of ―travel
Section 37 Regulations
143 The Scottish Ministers are given various powers under this Bill to make regulations
Section 37 provides for the parliamentary procedure which is to be applicable in relation to each
of those powers
Section 38 Ancillary provision
144 Section 38 provides that the Scottish Ministers may make regulations containing such
incidental supplementary consequential transitional transitory or saving provision as they
consider necessary or expedient for the purposes of or in connection with the provisions of the
Bill
21
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
Section 39 Minor and consequential amendments
145 Section 39 introduces the schedule which makes minor amendments and amendments
consequential on the provisions of the Bill Given their replacement in Part 1 of the Bill the
schedule repeals the current offences in relation to human trafficking (section 22 of the 2003 Act
and section 4 of the 2004 Act) and slavery servitude and forced or compulsory labour (section
47 of the 2010 Act)
Section 40 Crown application
146 Section 40(1) provides that none of the provisions made by or under the Act are capable
of making the Crown criminally liable In accordance with subsection (2) enforcement of
offences against the Crown is to be done by the Scottish Ministers or any other public body or
office-holder with responsibility for enforcing the provision applying to the Court of Session for
a civil declarator of non-compliance This provision does not apply to persons in the public
service of the Crown
Section 41 Commencement
147 Section 41 provides that sections 36 37 38 40 41 and 42 of the Bill come into force on
the day after Royal Assent All other provisions are to come into force on a day appointed by
regulations made by the Scottish Ministers
22
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
FINANCIAL MEMORANDUM
INTRODUCTION
1 This document relates to the Human Trafficking and Exploitation (Scotland) Bill (―the
Bill) introduced in the Scottish Parliament on 11 December 2014 It has been prepared by the
Scottish Government to satisfy Rule 932 of the Parliamentrsquos Standing Orders It does not form
part of the Bill and has not been endorsed by the Parliament
2 The purpose of the Bill is to consolidate and strengthen the existing criminal law against
human trafficking and exploitation and enhance the status and support provided to victims Bill
provisions are in the following Partsmdash
Part 1 (Offences) includes provision on the creation of a single offence of human trafficking
for all types of exploitation of both adults and children establishes statutory aggravators of
human trafficking for use with other crimes and reframes the current standalone offence of
slavery servitude and forced or compulsory labour
Part 2 (Protection of victims) includes provision on prosecutorial guidelines for the
prosecution of victims and provision about the support and assistance to which adult victims
are entitled
Part 3 (Confiscation of property) includes provision on detention and forfeiture of property
and proceeds of crime
Part 4 (Trafficking and exploitation prevention and risk orders) includes provision on
two new preventive orders the trafficking and exploitation prevention order and the
trafficking and exploitation risk order
Part 5 (Strategy and reporting) includes provision on the trafficking and exploitation
strategy and the duty on specified Scottish public authorities to notify and provide
information about victims
Part 6 contains general and ancillary provisions
3 This Financial Memorandum considers the financial implications of each of the elements
of the Bill where relevant
BACKGROUND
4 Before considering the financial implications associated with the specific provisions
within the Bill it is important to consider both the current estimated extent of human trafficking
in Scotland and existing activity by public bodies and others in response to this issue
23
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
Extent of human trafficking in Scotland
5 Human trafficking is by its nature a hidden crime The National Referral Mechanism
(NRM) is the process set up by the UK Government to identify and support victims of trafficking
in the UK The NRM is also the mechanism by which the UK Human Trafficking Centre
collects data about potential victims of trafficking Information about suspected child and adult
victims of human trafficking is referred by relevant ―first responder organisations such as the
police and third sector bodies for example Migrant Help and the Trafficking Awareness Raising
Alliance (TARA) Referrals relate to victims trafficked from outside and within the UK The
table below summarises the most recent available information on NRM referrals from first
responder organisations in Scotland
Table 1 Recent referrals from first responders in Scotland of potential child and adult
human trafficking victims to the National Referral Mechanism
2012 2013
Adults 67 77
Children 29 22
Total 96 99
of all UK Referrals 8 6
Source National Crime Agency National Referral Mechanism Statistics 2012 and 20131
6 Various reports confirm that the number of victims referred through the NRM is likely to
be a significant underestimate of the actual number of potential victims of trafficking For
example the Equality and Human Rights Commission Inquiry into Human Trafficking in
Scotland (2011) noted ―estimates of identified potential victims do not reflect what is likely to be
a much greater number of unidentified victims2
7 The UK National Crime Agency (NCA) Strategic Assessment of the Nature and Scale of
Human Trafficking in the UK3 aims to provide an indication of the nature and scale of human
trafficking beyond the number of referrals to the NRM The assessment is produced using
intelligence held by the NCA the NRM and intelligence information collected from agencies
such as Police Scotland the Home Office Gangmastersrsquo Licensing Authority and non-
government organisations The assessment removes information of potential victims referred to
the NRM who have received a negative ―reasonable grounds or ―conclusive decision (ie it
has been confirmed that they are not victims of trafficking) or duplicate information about
individuals (ie the same person has been referred more than once or by more than one agency)
to show a total number of ―unique potential victims of trafficking The NCA Assessment for
2013 indicated that there were significantly more unique potential victims of human trafficking
identified across the UK than the numbers referred to the NRM even excluding those that
received a negative decision and that the number of unique victims was increasing
1 httpwwwnationalcrimeagencygovukpublications399-nca-strategic-assessment-the-nature-and-scale-of-
human-trafficking-in-2013file 2httpwwwequalityhumanrightscomsitesdefaultfilesdocumentsScotlandHuman_Trafficking_in_Scotland_inq
uiry_into_human_trafficking_in_scotland-full-report_pdf_pdf 3 httpwwwnationalcrimeagencygovukpublications399-nca-strategic-assessment-the-nature-and-scale-of-
human-trafficking-in-2013file
24
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
Table 2 Comparison of recent UK referrals to the National Referral Mechanism and the
National Crime Agency Strategic Assessment of the Scale of Human Trafficking
2012 2013 Change
Referred to NRM 778 1095 +41
NCA Assessment No of
Unique Potential Victims
Identified
2255 2744 +22
Source National Crime Agency Strategic Assessment of the Nature and Scale of Human
Trafficking in the UK4
8 For Scotland the NCA Assessment for 2013 identified 55 unique potential victims of
human trafficking compared with 99 referrals to the NRM It is not known why in contrast to
the position in England and Wales the NCA Assessment for Scotland is lower than the NRM
referrals although it will exclude potential victims who received a negative conclusive decision
and duplicate referrals However these numbers must be treated with significant caution There
remains strong conviction amongst law enforcement bodies and victims organisations that there
are more victims of trafficking than are identified and that even once identified victims are
often unwilling to engage with authorities or identify themselves as having been trafficked For
the purpose of this Financial Memorandum the Scottish Government has accepted the NCA
assessment that there are likely to be between two and three times as many potential victims of
trafficking as are currently identified through the NRM This assessment is based on the Scottish
Governmentrsquos best understanding of the hidden nature of this crime and the known reluctance of
some victims to identify their trafficked status or to engage with public authorities
Criminal justice response to human trafficking and exploitation
9 There have been relatively few prosecutions and convictions for human trafficking
offences under existing criminal justice legislationmdash
The Criminal Justice (Scotland) Act 20035 (―the 2003 Act) provides for offences of
trafficking for the purposes of exploitation by way of prostitution
The Asylum and Immigration (Treatment of Claimants etc) Act 20046 (―the 2004
Act) provides for offences of trafficking for labour and other forms of exploitation
The Criminal Justice and Licensing (Scotland) Act 20107 (―the 2010 Act) amended
and extended the 2003 and 2004 Acts and created a standalone offence of holding
someone in slavery or servitude or requiring a person to perform forced or
compulsory labour
10 The first successful convictions for human trafficking in Scotland were in 2011 under
section 22 of the 2003 Act for trafficking for the purposes of prostitution During 2013 a total of
four people were convicted of human trafficking offences - one person under section 22 of the
2003 Act and three people under section 4 of the 2004 Act for trafficking for forced marriage
4 httpwwwnationalcrimeagencygovukpublications399-nca-strategic-assessment-the-nature-and-scale-of-
human-trafficking-in-2013file 5 httpwwwlegislationgovukasp20037
6 httpwwwlegislationgovukukpga200419
7 httpwwwlegislationgovukasp201013
25
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
The average custodial sentence length for those convicted of trafficking offences was 847 days
(just under two years and four months) as well as any confiscation order imposed
11 Although the number of convictions for trafficking offences has been small police and
the Crown Office and Procurator Fiscal Service (COPFS) have confirmed that even though it is
not possible to always prove the trafficking offence where a credible suspicion exists people
suspected of involvement with trafficking can and often are prosecuted and convicted for other
crimes such as crimes associated with prostitution forced marriage immigration offences and
drugs offences etc
12 Police Scotland has established a dedicated National Human Trafficking Unit to enhance
the police response to human trafficking through awareness raising intelligence gathering
training and providing divisions with advice and specialist knowledge The COPFS has
appointed dedicated expert fiscals to prosecute human trafficking offences
Support for victims of trafficking
13 The Scottish Government currently allocates direct grant funding to non-government
organisations to provide and facilitate immediate support and assistance to the adult victims of
human trafficking This support can include immediate safe accommodation psychological
support assistance in accessing medical treatment material assistance interpretation and
translation and assistance either with repatriation or securing longer-term access to mainstream
services and support such as welfare benefits and housing The provision of support and
assistance is not conditional on the potential victim being willing to participate in the criminal
justice process Under the NRM victims of trafficking are guaranteed ―a recovery and reflection
period to recover from their experience escape the influence of those alleged to have trafficked
or exploited them and consider whether to engage with authorities The Council of Europe
Convention on Action Against Trafficking in Human Beings8 provides for a reflection period of
at least 30 days for all trafficked victims when there are reasonable grounds to believe that the
person concerned is a victim The current minimum recovery and reflection period in Scotland
and the rest of the UK is 45 days
14 In 2013-14 total grant funding of pound723000 was provided by the Scottish Government
towards the costs of ensuring immediate support and assistance for the adult victims and
potential victims of trafficking in Scotland This funding was provided through two non-
government organisationsmdash
the TARA Service which works with women aged 18 years and over across
Scotland where there are concerns that they have been trafficked for commercial
sexual exploitation and
Migrant Help a UK-wide organisation providing support and advice services to
migrants including new asylum claimants refugees EU nationals etc
15 Support for the child victims of trafficking is co-ordinated by local authorities as part of
their child protection arrangements and in line with the policy intention that children remain
8 httpwwwcoeinttdghlmonitoringtraffickingdocsconvntnCETS197_enasp
26
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
children first and that their needs should be treated accordingly The Scottish Government has
produced a toolkit for agencies working with children and young people to ensure that staff are
able to identify trafficked children and make appropriate referrals so that victims can receive
protection and support The toolkit is designed to be used in conjunction with National Child
Protection Guidance9 which was first published in 2010 and refreshed in 2014 and other
relevant national and international guidance Information about current expenditure on child
victims of trafficking is not recorded separately from information about wider expenditure on
child protection services
Lord Advocate guidance on prosecution policy
16 In his letter of 21 January 2013 to the Scottish Parliament European and External
Relations Committee10
the Lord Advocate set out the current arrangements for fiscals
considering the prosecution of a confirmed or potential victim of human trafficking where it is
believed or claimed that the crime was committed as a direct consequence of the personrsquos
trafficked status The letter set out the basis for the current Lord Advocatersquos guidance to
prosecutors including the presumption against the prosecution of a credible trafficking victim
for crimes that arise as a consequence of the victimrsquos trafficked status
Human trafficking strategic approach awareness raising and training
17 The first Scottish Human Trafficking Summit was hosted by the Cabinet Secretary for
Justice in October 2012 The summit brought together key law enforcement public private and
third sector organisations with an interest in human trafficking Following the summit a number
of strategic collaborative actions were agreed and progressed including with reference to
awareness raising and training for frontline staff data collection and analysis identification care
and support for both child and adult victims of trafficking and enhancing enforcement
18 One specific workstream related to awareness raising and training of front-line staff
likely to come into contact with trafficking victims or potential instances of trafficking
Following the summit Police Scotland with support from the Scottish Government and others
prepared published and circulated widely an awareness raising leaflet ndash Reading the Signs11
ndash to
assist police officers and staff in other front line posts in identifying the signs of potential
trafficking The Scottish Government also participated with the UK Government in a UK-wide
public awareness raising campaign about modern slavery and trafficking
19 In addition to general awareness raising specific training material was prepared for key
front-line staff For example all police officers were required to undertake an e-learning course
on human trafficking A special leaflet for health workers was prepared and circulated by NHS
Health Scotland An e-learning module for health workers about their role in identifying and
9 httpwwwscotlandgovukPublications2014053052
10httpwwwscottishparliamentukS3_EuropeanandExternalRelationsCommitteeGeneral20DocumentsLetterfro
mTheLordAdvocatepdf 11
httpwwwscotlandpoliceukassetspdf174967human-traffickingview=Standard
27
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
responding to victims of trafficking was made available through the National Gender Based
Violence and Health Programme12
IMPACT OF SPECIFIC PROVISIONS
PART 1 - OFFENCES
Single trafficking offence
20 The Bill establishes a new single offence of human trafficking for all types of
exploitation for both adults and children replacing existing separate criminal offences (see
paragraph 9 above) As noted above to date there have been relatively small numbers of
prosecutions under existing trafficking offences
21 The maximum penalty for conviction on indictment for the single trafficking offence will
be life imprisonment compared with a maximum of 14 years for the current separate offences
Although it will be for the court to decide how to sentence people convicted under the new single
offence in any given case it is likely that the availability of a higher maximum sentence will
have cost implications for the Scottish Prison Service (SPS)
Revised slavery servitude and forced labour offence
22 The Bill will also repeal and replace the existing exploitation offence within section 47 of
the 2010 Act which criminalises holding someone in slavery or servitude or requiring them to
perform compulsory or forced labour The offence will be revised and strengthened to allow the
court to consider in assessing whether a person has been a victim of an offence the victimrsquos
characteristics such as age physical or mental illness disability or where relevant family
relationships The maximum penalty for the offence will be increased from 14 years for the
current offence to life imprisonment for a conviction on indictment
Statutory aggravators
23 The Bill makes provision for statutory aggravators which apply in cases where an
accused person commits an offence connected with human trafficking and for when the offence
is committed in connection with the accusedrsquos position as a public official The court must take
the aggravation into account in determining the appropriate sentence if it is proved that the
offence is aggravated in this way The statutory aggravator is not anticipated to have any
substantial financial implications for public private or third sector bodies or for individuals
Costs on the Scottish Administration
24 Consolidating and clarifying the existing criminal law on trafficking and exploitation
alongside other measures arising from the Bill and the trafficking and exploitation strategy
including training and awareness raising and support for victims should increase the potential
for successful investigations prosecutions and convictions of human trafficking and exploitation
offences There have been six successful prosecutions for a specific trafficking offence to date in
Scotland with an average custodial sentence length of two years and four months against a
12
httpwwwgbvscotnhsuk
28
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
maximum possible sentence of 14 years The maximum number of prosecutions in any one year
was four individuals in two separate cases
25 Police and prosecutors already have in place specialist resources for investigating and
prosecuting human trafficking and exploitation offences and these provisions will not add to
these costs Law enforcement agencies have confirmed that whilst the number of prosecutions
for specific trafficking offences has been low where victims are identified but are unwilling to
testify individuals suspected of trafficking and exploitation will be prosecuted in court for other
related offences The Lord Advocate has identified that ―If we donrsquot have the evidence [to
prosecute for a specific human trafficking offence] we prosecute for fraud ID theft or asylum
and immigration offences13
26 The Scottish Government does not anticipate therefore significant additional cost
implications for law enforcement agencies or courts as cases will often proceed with a
trafficking offence alongside or in place of other related offences For the same reason the
Scottish Government does not anticipate significant additional cost on the Scottish Legal Aid
Board (SLAB) However if it is assumed that the number of successful trials proceeding in any
single year doubles from two to four there would be some additional costs on the COPFS the
Scottish Court Service (SCS) and SLAB based on the average unit costs for cases proceeded
either through Sheriff Court Solemn procedure or through the High Court These estimated costs
depending on whether cases are proceeded through the High Court or Sheriff Court solemn
procedure are illustrated in the table below
Table 3 Estimated unit costs of additional trial procedures through either High Court or
Sheriff Court solemn procedure (pound000)
Average prosecution
costs per procedure
(COPFS)
Average court costs
per procedure (SCS)
Average legal aid
costs per procedure
(SLAB)
Sheriff Court solemn
procedure (pound000) pound49 pound19 pound16
High Court (pound000) pound556 pound90 pound135
Estimated average
costs of 2 additional
trial procedures 4
accused per annum
(pound000)
pound99-pound1112 pound38-pound180 pound64-pound540
Source costs of the Criminal Justice System in Scotland Dataset (2013)14
27 There will also be costs to the SPS both through any increase in the number of successful
convictions for trafficking and exploitation offences and an anticipated increase in the average
length of custodial sentence for these crimes It is not possible to know for certain the total
13
httpwwwdailyrecordcouknewsscottish-newsonly-three-successful-prosecutions-brought-4457684 14httpwwwscotlandgovukTopicsStatisticsBrowseCrimeJusticePublicationscostcrimjustsc
otcostcrimjustdatasethttpwwwscotlandgovukTopicsStatisticsBrowseCrimeJusticePublicationscostcrimj
ustscotcostcrimjustdataset
29
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
number of future convictions or what sentencing decisions might be taken by courts in individual
cases
28 The table below illustrates the potential cost implications of either maintaining or
increasing the current maximum number of convictions in any individual year from four to eight
convictions For the purpose of the calculation it is assumed that the average custodial sentence
length for trafficking and exploitation offences will increase from two years and four months
(classified as a short-term sentence) to over four years (classified as a long-term sentence) as
increasing the maximum sentence to life imprisonment is anticipated to increase the average
sentence for a trafficking offence The estimated average annual cost of a prison place based on
SPS figures is pound42500 Taking account of the current early release arrangements for long-term
prisoners and the overlapping of individual sentences would result in an estimated increase of 8
to 21 total prison places each year after four years ndash ie with an additional four people receiving
custodial sentences each year and released by the Parole Board at the halfway point of their
sentence or automatically at the two-thirds point The total costs to the SPS will be within a
range of pound340000 to pound890000 These costs will fit within the overall budget costs to the SPS
As at 17 October 2014 there were 7731 people in custody in Scotland An additional 21 places
accounts for 03 of the total prison population
Table 4 Estimated range of costs to the Scottish Prison Service from increasing the
number and average length of successful prosecutions for trafficking offences
Year 1 Year 2 Year 3 Year 4
Additional Prison places 0-4 4-12 8-17 8-21
Additional Cost (pound000) pound0-pound170 pound170- pound510 pound340-pound720 pound340-pound890
Table 5 Estimated range of combined costs for trial procedures and prison places
Year 1 Year 2 Year 3 Year 4
Additional Cost (pound000) pound20-pound353 pound190- pound693 pound360-pound900 pound360-pound1073
Costs on other bodies individuals and businesses
29 There will be no new costs falling on other bodies individuals and businesses as a
consequence of these sections but see the section below with reference to victim support
Costs on local authorities
30 There will be no new costs falling on local authorities as a consequence of these specific
sections
PART 2 - PROTECTION OF VICTIMS
Duty on the Lord Advocate to publish guidance about the prosecution of credible trafficking and
exploitation victims who have committed offences
Costs on the Scottish Administration
31 As noted above the Lord Advocate already prepares and publishes guidance to fiscals
about the prosecution of credible victims of human trafficking for crimes committed as a direct
30
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
consequence of their trafficking status The requirement to publish such guidance would in
future be statutory However there will be no new costs on the Scottish Government or the
COPFS as a consequence of placing the requirement for the Lord Advocate to issue this
guidance on a statutory basis
Costs on other bodies individuals and businesses
32 There will be no new costs falling on other bodies individuals and businesses as a
consequence of these sections
Costs on local authorities
33 There will be no new costs falling on local authorities as a consequence of these sections
Ensure the rights of victims to access and support
34 The Bill will place a statutory duty on the Scottish Ministers to secure the provision of
relevant immediate support and recovery services for adult victims of trafficking subject to an
assessment of need The Bill will specify those victims or potential victims entitled to support
and the minimum time periods during which such services should be provided Specifically the
Bill will require Ministers to provide support and assistance based on each individualrsquos assessed
needs during the recovery and reflection period (currently 45 days) during which the
individualrsquos trafficking status is determined The Bill specifies minimum support and assistance
that should be considered as part of the assessment including access to housing treatment
interpretation services etc The Scottish Ministers have the flexibility to provide support and
assistance outwith the specified reflection and recovery period where this is considered
appropriate
35 As noted above the Scottish Ministers already provide grant funding totalling pound723000
to third sector organisations to assist identified adult potential victims of trafficking Provision of
support to adult victims will be placed on a statutory basis The number of adult potential victims
of trafficking referred through the NRM during 2013 was 77 although not all of these will have
requested assistance or received the full range of support services It is assumed that other
actions arising from the Bill including the single offence and publication of the trafficking and
exploitation strategy will result over time in an increase in identified victims and requests for
assistance and support
Costs on the Scottish Administration
36 The Scottish Government anticipates that improved awareness raising and training of
front-line staff will result in an increase in the number of victims identified over time It is not
possible to know how quickly this improvement will be achieved However between 2012 and
2013 the number of potential identified victims across the UK identified through the NCA
strategic assessment and NRM increased by 22 and 41 respectively Given the need for
awareness raising and training to impact the Scottish Government does not anticipate a similar
scale of increase in the immediate term but the Government considers it reasonable to anticipate
a possible increase of between 10 and 20 per annum in the overall number of requests for
assistance and support each year over the next four years Assuming a similar mix of needs as
31
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
current victims the increased costs to the Scottish Government on top of existing funding
would range between pound290000 to pound580000 per annum by year four
Table 6 Estimated range of costs increases for victim support and assistance (pound000)
Year 1 Year 2 Year 3 Year 4
Additional Cost (pound000) pound0-pound140 pound140-pound280 pound220-pound430 pound290-pound580
Costs on other bodies individuals and businesses
37 There will be no additional costs on other public bodies individuals or businesses
associated with these specific provisions There will be no direct additional costs falling on third
sector organisations as a consequence of the specific provisions It is likely however that all or
part of the additional funding identified above will be directed by the Scottish Government
through relevant third sector organisations with the expertise to provide immediate support and
protection to victims
Costs on local authorities
38 The Bill creates no new legislative requirements for the delivery of childrenrsquos services
recognising that this already exists It is therefore not anticipated that the Bill will result in any
quantifiable additional costs on local authorities or other public bodies as a result of support for
child victims Child victims of trafficking are supported as part of the Getting It Right for Every
Child (GIRFEC) approach any child whether identified as trafficked or not will be assessed on
the basis of its needs It is anticipated that as a consequence of the strategy (for which the Bill
provides) that more children may be identified as trafficked It is noted however that various
reports including most recently the UK Governmentrsquos NRM Review Report15
have found that
children who are already receiving support from relevant authorities in the UK are often not
identified as trafficked victims because of lack of awareness of the referral process It may be
that actions arising from the development of the strategy and dialogue with stakeholders will
give rise to additional activity or costs with reference to child victims of trafficking but these are
not known and cannot be estimated at this time
PART 3 - CONFISCATION OF PROPERTY
39 The Bill will provide police with powers to detain the property such as cars boats etc of
a person arrested for a trafficking offence This power will be exercised at the time of arrest and
is not expected to impose any additional costs on the police or others
Costs on the Scottish Administration
40 There will be no additional costs on the Scottish Government as a result of these
provisions Individuals can apply to the court to have vehicles ships or aircraft released from
detention This will be considered as part of the overall case and will not add to the costs to the
criminal justice system
15
httpsnrmhomeofficegovuk
32
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
Costs on other bodies individuals and businesses
41 There will be no additional costs on other public bodies individuals or businesses
including Police Scotland as a result of these specific provisions
Costs on local authorities
42 There will be no additional costs on local authorities as a result of these specific
provisions
PART 4 - TRAFFICKING AND EXPLOITATION PREVENTION AND RISK ORDERS
Introduce new measures to disrupt and prevent trafficking and exploitation
43 The Bill will introduce two new civil orders and associated interim orders to assist in
preventing trafficking and exploitation Trafficking and Exploitation Prevention Orders (TEPOs)
and Trafficking and Exploitation Risk Orders (TEROs) Where an individual has been convicted
of a trafficking or exploitation offence or an offence with a statutory trafficking aggravator a
TEPO may be imposed by a court where there is a risk that that individual may commit a further
human trafficking offence and it is necessary to make the order to protect people from the
physical or psychological harm which might occur if such an offence were committed The
TEPO will prevent the individual from engaging in activities described in the order Where a
person has not been convicted of a trafficking or exploitation offence but a court considers that
the person presents a significant risk of harm to others through the individual committing a
trafficking or exploitation offence the court can impose a TERO restricting specific activities or
imposing requirements These orders will be civil but breach of an order will constitute a
criminal offence with a maximum penalty of five years in prison available to the court
44 The Bill will categorise the trafficking and exploitation offences as lifestyle offences in
order to automatically trigger provisions within the Proceeds of Crime Act 2002 (―the 2002
Act) The definition of an offence as a ―lifestyle offence allows for proceedings under the
2002 Act to confiscate assets or monies from the individual convicted of the offence
Costs on the Scottish Administration
45 The purpose of TEPOs and TEROs is to prevent criminal activity associated with
trafficking and exploitation from arising There will be some cost implications for law
enforcement organisations which will need to monitor the terms of any order imposed by the
courts However these will be offset by the savings made from being able to intervene at an
early stage of criminality if an order has been breached For the equivalent civil orders within the
UK Modern Slavery Bill the UK Government has estimated potential net savings of between
pound130000 and pound1090000 per annum The Scottish Government has not incorporated any
savings for the purpose of Scottish legislation but expects the costs of implementing TEPOs and
TEROs and detention powers to be at least cost neutral for the Scottish Administration and other
public bodies
33
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
46 The Bill will give courts powers to impose a TEPO at the time of sentencing There will
be no immediate additional costs for the courts or COPFS associated with TEPOs imposed as
part of sentencing The Chief Constable of Police Scotland will also be able to apply to the court
for a TEPO to be imposed on a relevant offender previously convicted of a trafficking offence
There will be costs to Police Scotland in making the application and to the SCS and to SLAB in
considering the application As there have been only six previous convictions for trafficking
offences in Scotland the Scottish Government expects the number of applications for TEPOs for
previous convictions to be small one-off and will not add to the overall costs of the criminal
justice system The Chief Constable of Police Scotland can also apply to the court for a TERO
against an individual where it is considered that that individual is likely to commit a trafficking
offence
47 Looking at the equivalent costs for similar civil orders eg Sexual Offences Prevention
Orders the total costs to the SCS the COPFS and SLAB of applying for a TERO or post-
sentencing TEPO are estimated at between pound1000 and pound6000 per order It is not possible to
know how many TEPOs or TEROs might be applied for but assuming a number half the level of
the estimated maximum number of potential convictions for trafficking offences each year (four
to eight) would give estimated costs of between pound2000 (2 x pound1000) and pound24000 (4 x pound6000)
per annum
48 There will be costs to Police Scotland in monitoring TEPOs and TEROs whether
imposed at the time of sentence or by application but this will sit alongside Police Scotlandrsquos
existing crime prevention and investigative responsibilities and is not expected to add to
manpower costs
49 In addition to the costs of imposing and monitoring TEPOs and TEROs there will be
costs associated with prosecuting a breach of a TEPO or TERO Analysis in England and Wales
indicates that breaches of equivalent Serious Crime Prevention Orders are relatively low
Assuming one breach per annum the total combined costs to the COPFS the SCS and SLAB
would be between pound8400 and pound78100 per annum (see the combined costs for either sheriff
court or High Court procedures set out in Table 3 above) Assuming a maximum sentence of
five years the costs to the SPS for additional prison places would be between pound85000 and
pound127500 per annum (ie the pound42500 average costs of a prison place times either two or three
places depending on whether offenders are released early at the halfway or two-thirds point of
their sentence)
50 It is important to remember however that the purpose of TEPOs and TEROs is to
prevent further trafficking and exploitation offences occurring A TEPO or TERO will only be
imposed where a court considers that there is a credible risk of an individual committing such a
crime Any costs associated with the imposition and breach of TEPOs and TEROs needs to be
offset against the potential costs of prosecutions If each TEPO or TERO prevents the costs of a
conviction for an offence as set out in Part 1 above the costs to the Scottish Administration
would be at least cost neutral in terms of saved court and prison places expenditure
34
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
Costs on other bodies individuals and businesses
51 There will be no costs on other bodies businesses or other individuals as a consequence
of these sections
Costs on local authorities
52 There will be no new costs on local authorities as a consequence of these sections
PART 5 - STRATEGY AND REPORTING
Ensure a strategic cross-agency approach to tackling trafficking
53 The Bill places a duty on the Scottish Ministers to prepare publish and regularly review
and update a trafficking and exploitation strategy to assist in ensuring a co-ordinated and
strategic approach to this issue The provisions place a duty on Ministers to consult with such
organisations and individuals as they consider to have a relevant interest in the issues of human
trafficking and exploitation The Bill places a duty on relevant public bodies to be named in
regulations to assist in the preparation and review of the strategy
54 The Bill will place a duty on relevant public authorities to provide anonymised data about
potential human trafficking and exploitation victims to Police Scotland
Costs on the Scottish Administration
55 Activity arising from these provisions within the Bill will build on the activity and
current resources already committed to this area of work
56 Based on similar activities the estimated additional costs to the Scottish Ministers of
preparing and reviewing a trafficking and exploitation strategy will be approximately pound25000
every three years Alongside the preparation and publication of the strategy the Scottish
Ministers would also propose to support additional awareness raising and training activity to
build on the existing awareness raising and training activity already undertaken by relevant
organisations including the NHS Police Scotland and COPFS Consideration would be given to
how best to co-ordinate these resources alongside existing expenditure and activity For the
purposes of the Financial Memorandum and based on current activity additional costs on top of
existing activity are estimated at approximately pound100000 to pound250000 per annum over the first
four years of the Bill This is based on the best estimated costs of preparing and publishing
publicity and guidance material averaged over a number of years The exact costs will depend
on decisions taken in dialogue with stakeholders as part of the preparation of the strategy
57 The Scottish Government anticipates that the costs to relevant public authorities of
providing anonymised data about potential human trafficking victims to Police Scotland will be
marginal Costs to Police Scotland of collating this data will form part of their existing
intelligence gathering activity
35
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
Costs on other bodies individuals and businesses
58 There will be some costs on other bodies individuals and businesses in engaging with the
Scottish Ministers in the preparation and publication of the Strategy For business and
individuals this will be voluntary depending on their willingness to engage For public bodies
their level of engagement will depend on the relevance of the issue of trafficking and
exploitation to their work and their potential contribution to combating this behaviour Any
additional costs are expected to fit within or sit alongside their existing responsibilities for
example with reference to promoting and ensuring equalities and the application of human
rights obligations
Costs on local authorities
59 There will be costs on local authorities associated with engaging in the preparation and
review of the trafficking and exploitation strategy and in awareness raising and training of front-
line staff The additional costs should be marginal on top of the existing guidance and activity
already in place with reference to the identification and support of potential child victims of
trafficking The aim will be to minimise costs for other front-line local authority staff by
adapting the general awareness raising and training materials described above
SUMMARY
60 The table below provides a summary of the costs of each element of the Bill as described
above
Table 7 Summary table of costs for each aspect of the Bill (pound000)
Year 1 Year 2 Year 3 Year 4
Clarifying amp
Strengthening the
Criminal Law ndash Para 28 pound20-pound353 pound190- pound693 pound360-pound900 pound360-pound1073
Ensure the rights of
victims to access and
support - Para 36 pound70-pound140 pound140-pound280 pound220-pound430 pound290-pound580
Introduce new measures to
disrupt and prevent
trafficking pound016
pound0 pound0 pound0
Ensure a strategic cross
agency approach to
tackling trafficking ndash Para
56 pound125-pound275 pound100-pound250 pound100-pound250 pound125-pound275
TOTAL pound215-pound768 pound430-pound1223 pound680-pound1580 pound775-pound1928
16
The Scottish Government considers that the overall costs are at least cost neutral ndash see paragraphs 45 to 50
36
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December
SCOTTISH GOVERNMENT STATEMENT ON LEGISLATIVE
COMPETENCE
On 11 December 2014 the Cabinet Secretary for Justice (Michael Matheson MSP) made the
following statement
―In my view the provisions of the Human Trafficking and Exploitation (Scotland) Bill
would be within the legislative competence of the Scottish Parliament
mdashmdashmdashmdashmdashmdashmdashmdashmdashmdash
PRESIDING OFFICERrsquoS STATEMENT ON LEGISLATIVE
COMPETENCE
On 11 December 2014 the Presiding Officer (Rt Hon Tricia Marwick MSP) made the following
statement
―In my view the provisions of the Human Trafficking and Exploitation (Scotland) Bill
would be within the legislative competence of the Scottish Parliament
37
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December
SP Bill 57ndashEN Session 4 (2014)
HUMAN TRAFFICKING AND EXPLOITATION
(SCOTLAND) BILL
EXPLANATORY NOTES
(AND OTHER ACCOMPANYING DOCUMENTS)
Parliamentary copyright Scottish Parliamentary Corporate Body
Information on the Scottish Parliamentrsquos copyright policy can be found on the website -
wwwscottishparliamentuk
Produced and published in Scotland on behalf of the Scottish Parliamentary Corporate Body by APS
Group Scotland
ISBN 978-1-78534-569-2
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
Section 24 Prohibitions on foreign travel
113 Section 24 makes provision about prohibitions on foreign travel contained in a TERO
114 As noted above subsection (1) provides that a prohibition on foreign travel contained in a
TERO and any TERO which contains such a prohibition and no other prohibitions or
requirements must be for a fixed period of not more than five years
115 Subsection (2) defines a ―prohibition on foreign travel as a prohibition on travelling to
countries outwith the UK (either by reference to particular countries or generally)
116 Subsection (3)(a) determines that a prohibition on foreign travel varied or renewed under
section 25 may be varied or renewed for further fixed periods of no more than five years each
time Subsection (3)(b) requires that an order containing only a foreign travel restriction may be
renewed for up to that fixed period
117 Subsection (4) sets out the requirement on a person in respect of whom a TERO has been
made containing a prohibition on foreign travel to all countries outwith the United Kingdom to
surrender at a police station each passport that the person has Subsection (5) provides that any
passport surrendered must be returned as soon as is reasonably practicable after the person
ceases to be subject to a prohibition on foreign travel to all countries outwith the United
Kingdom Circumstances where this subsection would not apply are provided for at subsection
(6) for example where a passport has already been returned to the relevant authority
Section 25 Variation renewal and discharge of risk orders
118 Section 25 makes provision about the variation renewal or discharge of TEROs
119 Subsections (1) to (3) set out general powers in this context The person in respect of
whom the TERO is made or the chief constable may apply to the sheriff for variation renewal or
discharge of a TERO Subsection (3) makes provision about shrieval jurisdiction in this
connection Where the sheriff receives such an application the sheriff may vary renew or
discharge individual prohibitions or requirements or add new prohibitions or requirements
renew the whole order or discharge the whole order
120 Subsection (4) provides that the sheriff must before making an order under this section
give an opportunity to make representations to the person in respect of whom the order is made
and the chief constable Subsection (5) provides that after taking into account any such
representations the sheriff may then make any order the sheriff considers appropriate
121 Subsection (6) sets out the tests the sheriff must consider when deciding whether to vary
renew or discharge TEROs (including by adding new prohibitions or requirements) or any
prohibitions or requirements within them Subsection (6)(a) applies the tests for the making of a
TERO to any variation (including an increase or a relaxation of a requirement or prohibition)
renewal or addition Subsection (6)(b) applies those tests to any discharge of a prohibition or
requirement or of an order
18
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
Section 26 Interim risk orders
122 Section 26 provides that a sheriff may make an interim TERO while the main application
under section 22 is being determined The sheriff may make such an order if the sheriff
considers it just to do so (subsection (1)) and such an order may contain prohibitions or
requirements (or both) in relation to the person in respect of whom the order is to have effect
(subsection (2)) Those prohibitions or requirements may relate to things to be done or not done
in any part of Scotland or anywhere outwith Scotland (subsection (3))
123 Subsection (4) provides that an interim TERO will only have effect for a fixed period
specified in the order and will cease to have effect on the determination of the main application
if that fixed period has not already expired
124 Subsection (5) allows for an application for variation or discharge of an interim TERO
(or a requirement or prohibition in the order) to be made to a sheriff in the sheriffdom of the
sheriff who made the interim order by the person in respect of whom the order was made or the
chief constable (subsection (6))
Section 27 Appeals risk orders
125 Section 27 provides for an appeals process in relation to TEROs and interim TEROs and
any order varying or renewing such a TERO or interim TERO The person in respect of whom
the order was made or the chief constable may appeal against any of these orders
Offences and supplementary provision
Section 28 Offences
126 Section 28 makes provision about breach of TEPOs and TEROs
127 Subsections (1) and (2) provide that a person commits an offence if that person does
anything which the person is prohibited from doing by an order or fails to do anything which the
person is required to do by a TEPO or a TERO or an interim TEPO or TERO
128 Subsection (3) makes provision about penalties in relation to these offences A person
who commits an offence under this section is liable on summary conviction to imprisonment for
a term not exceeding 12 months or a fine not exceeding the statutory minimum (or both) On
conviction on indictment that person is liable to imprisonment for a term not exceeding five
years or a fine (or both)
Section 29 Enforcement of other UK orders
129 Section 29 provides that the Scottish Ministers may modify by regulations the list of
orders at section 28(2) so that a breach of those orders in Scotland constitutes an offence under
section 28(1) The orders which may be added are ―relevant UK orders Those are described in
subsection (2) as orders under the law of England and Wales or Northern Ireland which appear to
the Scottish Ministers to be equivalent or similar to TEPOs TEROs or interim TEPOs or
TEROs
19
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
Section 30 Interpretation of Part 4
130 Section 30 defines certain terms used in Part 4
PART 5 - STRATEGY AND REPORTING
Section 31 Trafficking and exploitation strategy
131 Section 31 places a duty on the Scottish Ministers to prepare a trafficking and
exploitation strategy The strategy under this section is a strategy which sets out such actions
arrangements and outcomes as the Scottish Ministers consider appropriate in relation to the
conduct which constitutes an offence under this Act
132 Subsection (3) lists some of the matters which may be set out in the strategy though that
list is not exhaustive Those matters include for example training and awareness raising in
relation to the detection and prevention of the conduct which constitutes an offence of human
trafficking or an offence under section 4
Section 32 Review and publication of strategy
133 Subsection (1) of section 32 provides that the strategy prepared under section 31 must be
reviewed by the Scottish Ministers every three years Following a review the Scottish Ministers
are required by subsection (2) to prepare a report on the review including an assessment of the
extent to which the strategy has been complied with and may prepare a revised strategy If a
decision is taken following such a review not to prepare a revised strategy the Scottish Ministers
must set out their reasons for that decision
134 Subsection (4) places a duty on the Scottish Ministers to consult with those likely to have
an interest in the strategy before preparing or reviewing the strategy Those likely to have an
interest include but are not limited to businesses support agencies faith based groups etc
135 Subsection (5) requires the Scottish Ministers to publish and lay before the Scottish
Parliament each strategy and report prepared under this section
Section 33 Duty to co-operate on strategy
136 Section 33 provides that Scottish public authorities as specified in regulations that may
be made by the Scottish Ministers must provide such information and assistance as the Scottish
Ministers may reasonably require and otherwise co-operate with the Scottish Ministers in the
preparation or review of the strategy A specified public authority could include for example
Police Scotland and local authorities
Section 34 Duty to notify and provide information about victims
137 Section 34 places a duty on specified Scottish public authorities to notify the chief
constable of the Police Service of Scotland about a person who is or appears to be a victim of
20
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
an offence under section 1 or section 4 This duty would not affect any other general right to
report information relating to crime
138 Subsection (2) requires that a notification relating to an adult is anonymised and does not
include any information that identifies the adult or enables the adult to be identified unless the
adult consents to that data being provided
139 Subsection (3) provides that the Scottish Ministers may by regulations specify the
Scottish public authorities who are to be subject to this duty and may make provision about the
information to be included in the notification The regulations will be subject to the negative
procedure
PART 6 ndash FINAL PROVISIONS
Section 35 Offences by bodies corporate etc
140 Section 35 provides that where an offence under the Bill was committed by a body
corporate or a Scottish partnership or other unincorporated association and it is proved that the
offence was committed with the consent or connivance of or was attributable to any neglect on
the part of a relevant individual or someone purporting to be acting in the capacity of a relevant
individual that individual as well as the body corporate partnership or unincorporated
association commits the offence and is liable to be proceeded against and punished accordingly
141 Subsection (2) defines what is meant by a ―relevant individual for the purpose of this
section
Section 36 Interpretation
142 Section 36 defines certain terms for the purposes of the Bill for example the definition
of ―travel
Section 37 Regulations
143 The Scottish Ministers are given various powers under this Bill to make regulations
Section 37 provides for the parliamentary procedure which is to be applicable in relation to each
of those powers
Section 38 Ancillary provision
144 Section 38 provides that the Scottish Ministers may make regulations containing such
incidental supplementary consequential transitional transitory or saving provision as they
consider necessary or expedient for the purposes of or in connection with the provisions of the
Bill
21
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
Section 39 Minor and consequential amendments
145 Section 39 introduces the schedule which makes minor amendments and amendments
consequential on the provisions of the Bill Given their replacement in Part 1 of the Bill the
schedule repeals the current offences in relation to human trafficking (section 22 of the 2003 Act
and section 4 of the 2004 Act) and slavery servitude and forced or compulsory labour (section
47 of the 2010 Act)
Section 40 Crown application
146 Section 40(1) provides that none of the provisions made by or under the Act are capable
of making the Crown criminally liable In accordance with subsection (2) enforcement of
offences against the Crown is to be done by the Scottish Ministers or any other public body or
office-holder with responsibility for enforcing the provision applying to the Court of Session for
a civil declarator of non-compliance This provision does not apply to persons in the public
service of the Crown
Section 41 Commencement
147 Section 41 provides that sections 36 37 38 40 41 and 42 of the Bill come into force on
the day after Royal Assent All other provisions are to come into force on a day appointed by
regulations made by the Scottish Ministers
22
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
FINANCIAL MEMORANDUM
INTRODUCTION
1 This document relates to the Human Trafficking and Exploitation (Scotland) Bill (―the
Bill) introduced in the Scottish Parliament on 11 December 2014 It has been prepared by the
Scottish Government to satisfy Rule 932 of the Parliamentrsquos Standing Orders It does not form
part of the Bill and has not been endorsed by the Parliament
2 The purpose of the Bill is to consolidate and strengthen the existing criminal law against
human trafficking and exploitation and enhance the status and support provided to victims Bill
provisions are in the following Partsmdash
Part 1 (Offences) includes provision on the creation of a single offence of human trafficking
for all types of exploitation of both adults and children establishes statutory aggravators of
human trafficking for use with other crimes and reframes the current standalone offence of
slavery servitude and forced or compulsory labour
Part 2 (Protection of victims) includes provision on prosecutorial guidelines for the
prosecution of victims and provision about the support and assistance to which adult victims
are entitled
Part 3 (Confiscation of property) includes provision on detention and forfeiture of property
and proceeds of crime
Part 4 (Trafficking and exploitation prevention and risk orders) includes provision on
two new preventive orders the trafficking and exploitation prevention order and the
trafficking and exploitation risk order
Part 5 (Strategy and reporting) includes provision on the trafficking and exploitation
strategy and the duty on specified Scottish public authorities to notify and provide
information about victims
Part 6 contains general and ancillary provisions
3 This Financial Memorandum considers the financial implications of each of the elements
of the Bill where relevant
BACKGROUND
4 Before considering the financial implications associated with the specific provisions
within the Bill it is important to consider both the current estimated extent of human trafficking
in Scotland and existing activity by public bodies and others in response to this issue
23
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
Extent of human trafficking in Scotland
5 Human trafficking is by its nature a hidden crime The National Referral Mechanism
(NRM) is the process set up by the UK Government to identify and support victims of trafficking
in the UK The NRM is also the mechanism by which the UK Human Trafficking Centre
collects data about potential victims of trafficking Information about suspected child and adult
victims of human trafficking is referred by relevant ―first responder organisations such as the
police and third sector bodies for example Migrant Help and the Trafficking Awareness Raising
Alliance (TARA) Referrals relate to victims trafficked from outside and within the UK The
table below summarises the most recent available information on NRM referrals from first
responder organisations in Scotland
Table 1 Recent referrals from first responders in Scotland of potential child and adult
human trafficking victims to the National Referral Mechanism
2012 2013
Adults 67 77
Children 29 22
Total 96 99
of all UK Referrals 8 6
Source National Crime Agency National Referral Mechanism Statistics 2012 and 20131
6 Various reports confirm that the number of victims referred through the NRM is likely to
be a significant underestimate of the actual number of potential victims of trafficking For
example the Equality and Human Rights Commission Inquiry into Human Trafficking in
Scotland (2011) noted ―estimates of identified potential victims do not reflect what is likely to be
a much greater number of unidentified victims2
7 The UK National Crime Agency (NCA) Strategic Assessment of the Nature and Scale of
Human Trafficking in the UK3 aims to provide an indication of the nature and scale of human
trafficking beyond the number of referrals to the NRM The assessment is produced using
intelligence held by the NCA the NRM and intelligence information collected from agencies
such as Police Scotland the Home Office Gangmastersrsquo Licensing Authority and non-
government organisations The assessment removes information of potential victims referred to
the NRM who have received a negative ―reasonable grounds or ―conclusive decision (ie it
has been confirmed that they are not victims of trafficking) or duplicate information about
individuals (ie the same person has been referred more than once or by more than one agency)
to show a total number of ―unique potential victims of trafficking The NCA Assessment for
2013 indicated that there were significantly more unique potential victims of human trafficking
identified across the UK than the numbers referred to the NRM even excluding those that
received a negative decision and that the number of unique victims was increasing
1 httpwwwnationalcrimeagencygovukpublications399-nca-strategic-assessment-the-nature-and-scale-of-
human-trafficking-in-2013file 2httpwwwequalityhumanrightscomsitesdefaultfilesdocumentsScotlandHuman_Trafficking_in_Scotland_inq
uiry_into_human_trafficking_in_scotland-full-report_pdf_pdf 3 httpwwwnationalcrimeagencygovukpublications399-nca-strategic-assessment-the-nature-and-scale-of-
human-trafficking-in-2013file
24
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
Table 2 Comparison of recent UK referrals to the National Referral Mechanism and the
National Crime Agency Strategic Assessment of the Scale of Human Trafficking
2012 2013 Change
Referred to NRM 778 1095 +41
NCA Assessment No of
Unique Potential Victims
Identified
2255 2744 +22
Source National Crime Agency Strategic Assessment of the Nature and Scale of Human
Trafficking in the UK4
8 For Scotland the NCA Assessment for 2013 identified 55 unique potential victims of
human trafficking compared with 99 referrals to the NRM It is not known why in contrast to
the position in England and Wales the NCA Assessment for Scotland is lower than the NRM
referrals although it will exclude potential victims who received a negative conclusive decision
and duplicate referrals However these numbers must be treated with significant caution There
remains strong conviction amongst law enforcement bodies and victims organisations that there
are more victims of trafficking than are identified and that even once identified victims are
often unwilling to engage with authorities or identify themselves as having been trafficked For
the purpose of this Financial Memorandum the Scottish Government has accepted the NCA
assessment that there are likely to be between two and three times as many potential victims of
trafficking as are currently identified through the NRM This assessment is based on the Scottish
Governmentrsquos best understanding of the hidden nature of this crime and the known reluctance of
some victims to identify their trafficked status or to engage with public authorities
Criminal justice response to human trafficking and exploitation
9 There have been relatively few prosecutions and convictions for human trafficking
offences under existing criminal justice legislationmdash
The Criminal Justice (Scotland) Act 20035 (―the 2003 Act) provides for offences of
trafficking for the purposes of exploitation by way of prostitution
The Asylum and Immigration (Treatment of Claimants etc) Act 20046 (―the 2004
Act) provides for offences of trafficking for labour and other forms of exploitation
The Criminal Justice and Licensing (Scotland) Act 20107 (―the 2010 Act) amended
and extended the 2003 and 2004 Acts and created a standalone offence of holding
someone in slavery or servitude or requiring a person to perform forced or
compulsory labour
10 The first successful convictions for human trafficking in Scotland were in 2011 under
section 22 of the 2003 Act for trafficking for the purposes of prostitution During 2013 a total of
four people were convicted of human trafficking offences - one person under section 22 of the
2003 Act and three people under section 4 of the 2004 Act for trafficking for forced marriage
4 httpwwwnationalcrimeagencygovukpublications399-nca-strategic-assessment-the-nature-and-scale-of-
human-trafficking-in-2013file 5 httpwwwlegislationgovukasp20037
6 httpwwwlegislationgovukukpga200419
7 httpwwwlegislationgovukasp201013
25
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
The average custodial sentence length for those convicted of trafficking offences was 847 days
(just under two years and four months) as well as any confiscation order imposed
11 Although the number of convictions for trafficking offences has been small police and
the Crown Office and Procurator Fiscal Service (COPFS) have confirmed that even though it is
not possible to always prove the trafficking offence where a credible suspicion exists people
suspected of involvement with trafficking can and often are prosecuted and convicted for other
crimes such as crimes associated with prostitution forced marriage immigration offences and
drugs offences etc
12 Police Scotland has established a dedicated National Human Trafficking Unit to enhance
the police response to human trafficking through awareness raising intelligence gathering
training and providing divisions with advice and specialist knowledge The COPFS has
appointed dedicated expert fiscals to prosecute human trafficking offences
Support for victims of trafficking
13 The Scottish Government currently allocates direct grant funding to non-government
organisations to provide and facilitate immediate support and assistance to the adult victims of
human trafficking This support can include immediate safe accommodation psychological
support assistance in accessing medical treatment material assistance interpretation and
translation and assistance either with repatriation or securing longer-term access to mainstream
services and support such as welfare benefits and housing The provision of support and
assistance is not conditional on the potential victim being willing to participate in the criminal
justice process Under the NRM victims of trafficking are guaranteed ―a recovery and reflection
period to recover from their experience escape the influence of those alleged to have trafficked
or exploited them and consider whether to engage with authorities The Council of Europe
Convention on Action Against Trafficking in Human Beings8 provides for a reflection period of
at least 30 days for all trafficked victims when there are reasonable grounds to believe that the
person concerned is a victim The current minimum recovery and reflection period in Scotland
and the rest of the UK is 45 days
14 In 2013-14 total grant funding of pound723000 was provided by the Scottish Government
towards the costs of ensuring immediate support and assistance for the adult victims and
potential victims of trafficking in Scotland This funding was provided through two non-
government organisationsmdash
the TARA Service which works with women aged 18 years and over across
Scotland where there are concerns that they have been trafficked for commercial
sexual exploitation and
Migrant Help a UK-wide organisation providing support and advice services to
migrants including new asylum claimants refugees EU nationals etc
15 Support for the child victims of trafficking is co-ordinated by local authorities as part of
their child protection arrangements and in line with the policy intention that children remain
8 httpwwwcoeinttdghlmonitoringtraffickingdocsconvntnCETS197_enasp
26
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
children first and that their needs should be treated accordingly The Scottish Government has
produced a toolkit for agencies working with children and young people to ensure that staff are
able to identify trafficked children and make appropriate referrals so that victims can receive
protection and support The toolkit is designed to be used in conjunction with National Child
Protection Guidance9 which was first published in 2010 and refreshed in 2014 and other
relevant national and international guidance Information about current expenditure on child
victims of trafficking is not recorded separately from information about wider expenditure on
child protection services
Lord Advocate guidance on prosecution policy
16 In his letter of 21 January 2013 to the Scottish Parliament European and External
Relations Committee10
the Lord Advocate set out the current arrangements for fiscals
considering the prosecution of a confirmed or potential victim of human trafficking where it is
believed or claimed that the crime was committed as a direct consequence of the personrsquos
trafficked status The letter set out the basis for the current Lord Advocatersquos guidance to
prosecutors including the presumption against the prosecution of a credible trafficking victim
for crimes that arise as a consequence of the victimrsquos trafficked status
Human trafficking strategic approach awareness raising and training
17 The first Scottish Human Trafficking Summit was hosted by the Cabinet Secretary for
Justice in October 2012 The summit brought together key law enforcement public private and
third sector organisations with an interest in human trafficking Following the summit a number
of strategic collaborative actions were agreed and progressed including with reference to
awareness raising and training for frontline staff data collection and analysis identification care
and support for both child and adult victims of trafficking and enhancing enforcement
18 One specific workstream related to awareness raising and training of front-line staff
likely to come into contact with trafficking victims or potential instances of trafficking
Following the summit Police Scotland with support from the Scottish Government and others
prepared published and circulated widely an awareness raising leaflet ndash Reading the Signs11
ndash to
assist police officers and staff in other front line posts in identifying the signs of potential
trafficking The Scottish Government also participated with the UK Government in a UK-wide
public awareness raising campaign about modern slavery and trafficking
19 In addition to general awareness raising specific training material was prepared for key
front-line staff For example all police officers were required to undertake an e-learning course
on human trafficking A special leaflet for health workers was prepared and circulated by NHS
Health Scotland An e-learning module for health workers about their role in identifying and
9 httpwwwscotlandgovukPublications2014053052
10httpwwwscottishparliamentukS3_EuropeanandExternalRelationsCommitteeGeneral20DocumentsLetterfro
mTheLordAdvocatepdf 11
httpwwwscotlandpoliceukassetspdf174967human-traffickingview=Standard
27
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
responding to victims of trafficking was made available through the National Gender Based
Violence and Health Programme12
IMPACT OF SPECIFIC PROVISIONS
PART 1 - OFFENCES
Single trafficking offence
20 The Bill establishes a new single offence of human trafficking for all types of
exploitation for both adults and children replacing existing separate criminal offences (see
paragraph 9 above) As noted above to date there have been relatively small numbers of
prosecutions under existing trafficking offences
21 The maximum penalty for conviction on indictment for the single trafficking offence will
be life imprisonment compared with a maximum of 14 years for the current separate offences
Although it will be for the court to decide how to sentence people convicted under the new single
offence in any given case it is likely that the availability of a higher maximum sentence will
have cost implications for the Scottish Prison Service (SPS)
Revised slavery servitude and forced labour offence
22 The Bill will also repeal and replace the existing exploitation offence within section 47 of
the 2010 Act which criminalises holding someone in slavery or servitude or requiring them to
perform compulsory or forced labour The offence will be revised and strengthened to allow the
court to consider in assessing whether a person has been a victim of an offence the victimrsquos
characteristics such as age physical or mental illness disability or where relevant family
relationships The maximum penalty for the offence will be increased from 14 years for the
current offence to life imprisonment for a conviction on indictment
Statutory aggravators
23 The Bill makes provision for statutory aggravators which apply in cases where an
accused person commits an offence connected with human trafficking and for when the offence
is committed in connection with the accusedrsquos position as a public official The court must take
the aggravation into account in determining the appropriate sentence if it is proved that the
offence is aggravated in this way The statutory aggravator is not anticipated to have any
substantial financial implications for public private or third sector bodies or for individuals
Costs on the Scottish Administration
24 Consolidating and clarifying the existing criminal law on trafficking and exploitation
alongside other measures arising from the Bill and the trafficking and exploitation strategy
including training and awareness raising and support for victims should increase the potential
for successful investigations prosecutions and convictions of human trafficking and exploitation
offences There have been six successful prosecutions for a specific trafficking offence to date in
Scotland with an average custodial sentence length of two years and four months against a
12
httpwwwgbvscotnhsuk
28
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
maximum possible sentence of 14 years The maximum number of prosecutions in any one year
was four individuals in two separate cases
25 Police and prosecutors already have in place specialist resources for investigating and
prosecuting human trafficking and exploitation offences and these provisions will not add to
these costs Law enforcement agencies have confirmed that whilst the number of prosecutions
for specific trafficking offences has been low where victims are identified but are unwilling to
testify individuals suspected of trafficking and exploitation will be prosecuted in court for other
related offences The Lord Advocate has identified that ―If we donrsquot have the evidence [to
prosecute for a specific human trafficking offence] we prosecute for fraud ID theft or asylum
and immigration offences13
26 The Scottish Government does not anticipate therefore significant additional cost
implications for law enforcement agencies or courts as cases will often proceed with a
trafficking offence alongside or in place of other related offences For the same reason the
Scottish Government does not anticipate significant additional cost on the Scottish Legal Aid
Board (SLAB) However if it is assumed that the number of successful trials proceeding in any
single year doubles from two to four there would be some additional costs on the COPFS the
Scottish Court Service (SCS) and SLAB based on the average unit costs for cases proceeded
either through Sheriff Court Solemn procedure or through the High Court These estimated costs
depending on whether cases are proceeded through the High Court or Sheriff Court solemn
procedure are illustrated in the table below
Table 3 Estimated unit costs of additional trial procedures through either High Court or
Sheriff Court solemn procedure (pound000)
Average prosecution
costs per procedure
(COPFS)
Average court costs
per procedure (SCS)
Average legal aid
costs per procedure
(SLAB)
Sheriff Court solemn
procedure (pound000) pound49 pound19 pound16
High Court (pound000) pound556 pound90 pound135
Estimated average
costs of 2 additional
trial procedures 4
accused per annum
(pound000)
pound99-pound1112 pound38-pound180 pound64-pound540
Source costs of the Criminal Justice System in Scotland Dataset (2013)14
27 There will also be costs to the SPS both through any increase in the number of successful
convictions for trafficking and exploitation offences and an anticipated increase in the average
length of custodial sentence for these crimes It is not possible to know for certain the total
13
httpwwwdailyrecordcouknewsscottish-newsonly-three-successful-prosecutions-brought-4457684 14httpwwwscotlandgovukTopicsStatisticsBrowseCrimeJusticePublicationscostcrimjustsc
otcostcrimjustdatasethttpwwwscotlandgovukTopicsStatisticsBrowseCrimeJusticePublicationscostcrimj
ustscotcostcrimjustdataset
29
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
number of future convictions or what sentencing decisions might be taken by courts in individual
cases
28 The table below illustrates the potential cost implications of either maintaining or
increasing the current maximum number of convictions in any individual year from four to eight
convictions For the purpose of the calculation it is assumed that the average custodial sentence
length for trafficking and exploitation offences will increase from two years and four months
(classified as a short-term sentence) to over four years (classified as a long-term sentence) as
increasing the maximum sentence to life imprisonment is anticipated to increase the average
sentence for a trafficking offence The estimated average annual cost of a prison place based on
SPS figures is pound42500 Taking account of the current early release arrangements for long-term
prisoners and the overlapping of individual sentences would result in an estimated increase of 8
to 21 total prison places each year after four years ndash ie with an additional four people receiving
custodial sentences each year and released by the Parole Board at the halfway point of their
sentence or automatically at the two-thirds point The total costs to the SPS will be within a
range of pound340000 to pound890000 These costs will fit within the overall budget costs to the SPS
As at 17 October 2014 there were 7731 people in custody in Scotland An additional 21 places
accounts for 03 of the total prison population
Table 4 Estimated range of costs to the Scottish Prison Service from increasing the
number and average length of successful prosecutions for trafficking offences
Year 1 Year 2 Year 3 Year 4
Additional Prison places 0-4 4-12 8-17 8-21
Additional Cost (pound000) pound0-pound170 pound170- pound510 pound340-pound720 pound340-pound890
Table 5 Estimated range of combined costs for trial procedures and prison places
Year 1 Year 2 Year 3 Year 4
Additional Cost (pound000) pound20-pound353 pound190- pound693 pound360-pound900 pound360-pound1073
Costs on other bodies individuals and businesses
29 There will be no new costs falling on other bodies individuals and businesses as a
consequence of these sections but see the section below with reference to victim support
Costs on local authorities
30 There will be no new costs falling on local authorities as a consequence of these specific
sections
PART 2 - PROTECTION OF VICTIMS
Duty on the Lord Advocate to publish guidance about the prosecution of credible trafficking and
exploitation victims who have committed offences
Costs on the Scottish Administration
31 As noted above the Lord Advocate already prepares and publishes guidance to fiscals
about the prosecution of credible victims of human trafficking for crimes committed as a direct
30
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
consequence of their trafficking status The requirement to publish such guidance would in
future be statutory However there will be no new costs on the Scottish Government or the
COPFS as a consequence of placing the requirement for the Lord Advocate to issue this
guidance on a statutory basis
Costs on other bodies individuals and businesses
32 There will be no new costs falling on other bodies individuals and businesses as a
consequence of these sections
Costs on local authorities
33 There will be no new costs falling on local authorities as a consequence of these sections
Ensure the rights of victims to access and support
34 The Bill will place a statutory duty on the Scottish Ministers to secure the provision of
relevant immediate support and recovery services for adult victims of trafficking subject to an
assessment of need The Bill will specify those victims or potential victims entitled to support
and the minimum time periods during which such services should be provided Specifically the
Bill will require Ministers to provide support and assistance based on each individualrsquos assessed
needs during the recovery and reflection period (currently 45 days) during which the
individualrsquos trafficking status is determined The Bill specifies minimum support and assistance
that should be considered as part of the assessment including access to housing treatment
interpretation services etc The Scottish Ministers have the flexibility to provide support and
assistance outwith the specified reflection and recovery period where this is considered
appropriate
35 As noted above the Scottish Ministers already provide grant funding totalling pound723000
to third sector organisations to assist identified adult potential victims of trafficking Provision of
support to adult victims will be placed on a statutory basis The number of adult potential victims
of trafficking referred through the NRM during 2013 was 77 although not all of these will have
requested assistance or received the full range of support services It is assumed that other
actions arising from the Bill including the single offence and publication of the trafficking and
exploitation strategy will result over time in an increase in identified victims and requests for
assistance and support
Costs on the Scottish Administration
36 The Scottish Government anticipates that improved awareness raising and training of
front-line staff will result in an increase in the number of victims identified over time It is not
possible to know how quickly this improvement will be achieved However between 2012 and
2013 the number of potential identified victims across the UK identified through the NCA
strategic assessment and NRM increased by 22 and 41 respectively Given the need for
awareness raising and training to impact the Scottish Government does not anticipate a similar
scale of increase in the immediate term but the Government considers it reasonable to anticipate
a possible increase of between 10 and 20 per annum in the overall number of requests for
assistance and support each year over the next four years Assuming a similar mix of needs as
31
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
current victims the increased costs to the Scottish Government on top of existing funding
would range between pound290000 to pound580000 per annum by year four
Table 6 Estimated range of costs increases for victim support and assistance (pound000)
Year 1 Year 2 Year 3 Year 4
Additional Cost (pound000) pound0-pound140 pound140-pound280 pound220-pound430 pound290-pound580
Costs on other bodies individuals and businesses
37 There will be no additional costs on other public bodies individuals or businesses
associated with these specific provisions There will be no direct additional costs falling on third
sector organisations as a consequence of the specific provisions It is likely however that all or
part of the additional funding identified above will be directed by the Scottish Government
through relevant third sector organisations with the expertise to provide immediate support and
protection to victims
Costs on local authorities
38 The Bill creates no new legislative requirements for the delivery of childrenrsquos services
recognising that this already exists It is therefore not anticipated that the Bill will result in any
quantifiable additional costs on local authorities or other public bodies as a result of support for
child victims Child victims of trafficking are supported as part of the Getting It Right for Every
Child (GIRFEC) approach any child whether identified as trafficked or not will be assessed on
the basis of its needs It is anticipated that as a consequence of the strategy (for which the Bill
provides) that more children may be identified as trafficked It is noted however that various
reports including most recently the UK Governmentrsquos NRM Review Report15
have found that
children who are already receiving support from relevant authorities in the UK are often not
identified as trafficked victims because of lack of awareness of the referral process It may be
that actions arising from the development of the strategy and dialogue with stakeholders will
give rise to additional activity or costs with reference to child victims of trafficking but these are
not known and cannot be estimated at this time
PART 3 - CONFISCATION OF PROPERTY
39 The Bill will provide police with powers to detain the property such as cars boats etc of
a person arrested for a trafficking offence This power will be exercised at the time of arrest and
is not expected to impose any additional costs on the police or others
Costs on the Scottish Administration
40 There will be no additional costs on the Scottish Government as a result of these
provisions Individuals can apply to the court to have vehicles ships or aircraft released from
detention This will be considered as part of the overall case and will not add to the costs to the
criminal justice system
15
httpsnrmhomeofficegovuk
32
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
Costs on other bodies individuals and businesses
41 There will be no additional costs on other public bodies individuals or businesses
including Police Scotland as a result of these specific provisions
Costs on local authorities
42 There will be no additional costs on local authorities as a result of these specific
provisions
PART 4 - TRAFFICKING AND EXPLOITATION PREVENTION AND RISK ORDERS
Introduce new measures to disrupt and prevent trafficking and exploitation
43 The Bill will introduce two new civil orders and associated interim orders to assist in
preventing trafficking and exploitation Trafficking and Exploitation Prevention Orders (TEPOs)
and Trafficking and Exploitation Risk Orders (TEROs) Where an individual has been convicted
of a trafficking or exploitation offence or an offence with a statutory trafficking aggravator a
TEPO may be imposed by a court where there is a risk that that individual may commit a further
human trafficking offence and it is necessary to make the order to protect people from the
physical or psychological harm which might occur if such an offence were committed The
TEPO will prevent the individual from engaging in activities described in the order Where a
person has not been convicted of a trafficking or exploitation offence but a court considers that
the person presents a significant risk of harm to others through the individual committing a
trafficking or exploitation offence the court can impose a TERO restricting specific activities or
imposing requirements These orders will be civil but breach of an order will constitute a
criminal offence with a maximum penalty of five years in prison available to the court
44 The Bill will categorise the trafficking and exploitation offences as lifestyle offences in
order to automatically trigger provisions within the Proceeds of Crime Act 2002 (―the 2002
Act) The definition of an offence as a ―lifestyle offence allows for proceedings under the
2002 Act to confiscate assets or monies from the individual convicted of the offence
Costs on the Scottish Administration
45 The purpose of TEPOs and TEROs is to prevent criminal activity associated with
trafficking and exploitation from arising There will be some cost implications for law
enforcement organisations which will need to monitor the terms of any order imposed by the
courts However these will be offset by the savings made from being able to intervene at an
early stage of criminality if an order has been breached For the equivalent civil orders within the
UK Modern Slavery Bill the UK Government has estimated potential net savings of between
pound130000 and pound1090000 per annum The Scottish Government has not incorporated any
savings for the purpose of Scottish legislation but expects the costs of implementing TEPOs and
TEROs and detention powers to be at least cost neutral for the Scottish Administration and other
public bodies
33
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
46 The Bill will give courts powers to impose a TEPO at the time of sentencing There will
be no immediate additional costs for the courts or COPFS associated with TEPOs imposed as
part of sentencing The Chief Constable of Police Scotland will also be able to apply to the court
for a TEPO to be imposed on a relevant offender previously convicted of a trafficking offence
There will be costs to Police Scotland in making the application and to the SCS and to SLAB in
considering the application As there have been only six previous convictions for trafficking
offences in Scotland the Scottish Government expects the number of applications for TEPOs for
previous convictions to be small one-off and will not add to the overall costs of the criminal
justice system The Chief Constable of Police Scotland can also apply to the court for a TERO
against an individual where it is considered that that individual is likely to commit a trafficking
offence
47 Looking at the equivalent costs for similar civil orders eg Sexual Offences Prevention
Orders the total costs to the SCS the COPFS and SLAB of applying for a TERO or post-
sentencing TEPO are estimated at between pound1000 and pound6000 per order It is not possible to
know how many TEPOs or TEROs might be applied for but assuming a number half the level of
the estimated maximum number of potential convictions for trafficking offences each year (four
to eight) would give estimated costs of between pound2000 (2 x pound1000) and pound24000 (4 x pound6000)
per annum
48 There will be costs to Police Scotland in monitoring TEPOs and TEROs whether
imposed at the time of sentence or by application but this will sit alongside Police Scotlandrsquos
existing crime prevention and investigative responsibilities and is not expected to add to
manpower costs
49 In addition to the costs of imposing and monitoring TEPOs and TEROs there will be
costs associated with prosecuting a breach of a TEPO or TERO Analysis in England and Wales
indicates that breaches of equivalent Serious Crime Prevention Orders are relatively low
Assuming one breach per annum the total combined costs to the COPFS the SCS and SLAB
would be between pound8400 and pound78100 per annum (see the combined costs for either sheriff
court or High Court procedures set out in Table 3 above) Assuming a maximum sentence of
five years the costs to the SPS for additional prison places would be between pound85000 and
pound127500 per annum (ie the pound42500 average costs of a prison place times either two or three
places depending on whether offenders are released early at the halfway or two-thirds point of
their sentence)
50 It is important to remember however that the purpose of TEPOs and TEROs is to
prevent further trafficking and exploitation offences occurring A TEPO or TERO will only be
imposed where a court considers that there is a credible risk of an individual committing such a
crime Any costs associated with the imposition and breach of TEPOs and TEROs needs to be
offset against the potential costs of prosecutions If each TEPO or TERO prevents the costs of a
conviction for an offence as set out in Part 1 above the costs to the Scottish Administration
would be at least cost neutral in terms of saved court and prison places expenditure
34
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
Costs on other bodies individuals and businesses
51 There will be no costs on other bodies businesses or other individuals as a consequence
of these sections
Costs on local authorities
52 There will be no new costs on local authorities as a consequence of these sections
PART 5 - STRATEGY AND REPORTING
Ensure a strategic cross-agency approach to tackling trafficking
53 The Bill places a duty on the Scottish Ministers to prepare publish and regularly review
and update a trafficking and exploitation strategy to assist in ensuring a co-ordinated and
strategic approach to this issue The provisions place a duty on Ministers to consult with such
organisations and individuals as they consider to have a relevant interest in the issues of human
trafficking and exploitation The Bill places a duty on relevant public bodies to be named in
regulations to assist in the preparation and review of the strategy
54 The Bill will place a duty on relevant public authorities to provide anonymised data about
potential human trafficking and exploitation victims to Police Scotland
Costs on the Scottish Administration
55 Activity arising from these provisions within the Bill will build on the activity and
current resources already committed to this area of work
56 Based on similar activities the estimated additional costs to the Scottish Ministers of
preparing and reviewing a trafficking and exploitation strategy will be approximately pound25000
every three years Alongside the preparation and publication of the strategy the Scottish
Ministers would also propose to support additional awareness raising and training activity to
build on the existing awareness raising and training activity already undertaken by relevant
organisations including the NHS Police Scotland and COPFS Consideration would be given to
how best to co-ordinate these resources alongside existing expenditure and activity For the
purposes of the Financial Memorandum and based on current activity additional costs on top of
existing activity are estimated at approximately pound100000 to pound250000 per annum over the first
four years of the Bill This is based on the best estimated costs of preparing and publishing
publicity and guidance material averaged over a number of years The exact costs will depend
on decisions taken in dialogue with stakeholders as part of the preparation of the strategy
57 The Scottish Government anticipates that the costs to relevant public authorities of
providing anonymised data about potential human trafficking victims to Police Scotland will be
marginal Costs to Police Scotland of collating this data will form part of their existing
intelligence gathering activity
35
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
Costs on other bodies individuals and businesses
58 There will be some costs on other bodies individuals and businesses in engaging with the
Scottish Ministers in the preparation and publication of the Strategy For business and
individuals this will be voluntary depending on their willingness to engage For public bodies
their level of engagement will depend on the relevance of the issue of trafficking and
exploitation to their work and their potential contribution to combating this behaviour Any
additional costs are expected to fit within or sit alongside their existing responsibilities for
example with reference to promoting and ensuring equalities and the application of human
rights obligations
Costs on local authorities
59 There will be costs on local authorities associated with engaging in the preparation and
review of the trafficking and exploitation strategy and in awareness raising and training of front-
line staff The additional costs should be marginal on top of the existing guidance and activity
already in place with reference to the identification and support of potential child victims of
trafficking The aim will be to minimise costs for other front-line local authority staff by
adapting the general awareness raising and training materials described above
SUMMARY
60 The table below provides a summary of the costs of each element of the Bill as described
above
Table 7 Summary table of costs for each aspect of the Bill (pound000)
Year 1 Year 2 Year 3 Year 4
Clarifying amp
Strengthening the
Criminal Law ndash Para 28 pound20-pound353 pound190- pound693 pound360-pound900 pound360-pound1073
Ensure the rights of
victims to access and
support - Para 36 pound70-pound140 pound140-pound280 pound220-pound430 pound290-pound580
Introduce new measures to
disrupt and prevent
trafficking pound016
pound0 pound0 pound0
Ensure a strategic cross
agency approach to
tackling trafficking ndash Para
56 pound125-pound275 pound100-pound250 pound100-pound250 pound125-pound275
TOTAL pound215-pound768 pound430-pound1223 pound680-pound1580 pound775-pound1928
16
The Scottish Government considers that the overall costs are at least cost neutral ndash see paragraphs 45 to 50
36
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December
SCOTTISH GOVERNMENT STATEMENT ON LEGISLATIVE
COMPETENCE
On 11 December 2014 the Cabinet Secretary for Justice (Michael Matheson MSP) made the
following statement
―In my view the provisions of the Human Trafficking and Exploitation (Scotland) Bill
would be within the legislative competence of the Scottish Parliament
mdashmdashmdashmdashmdashmdashmdashmdashmdashmdash
PRESIDING OFFICERrsquoS STATEMENT ON LEGISLATIVE
COMPETENCE
On 11 December 2014 the Presiding Officer (Rt Hon Tricia Marwick MSP) made the following
statement
―In my view the provisions of the Human Trafficking and Exploitation (Scotland) Bill
would be within the legislative competence of the Scottish Parliament
37
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December
SP Bill 57ndashEN Session 4 (2014)
HUMAN TRAFFICKING AND EXPLOITATION
(SCOTLAND) BILL
EXPLANATORY NOTES
(AND OTHER ACCOMPANYING DOCUMENTS)
Parliamentary copyright Scottish Parliamentary Corporate Body
Information on the Scottish Parliamentrsquos copyright policy can be found on the website -
wwwscottishparliamentuk
Produced and published in Scotland on behalf of the Scottish Parliamentary Corporate Body by APS
Group Scotland
ISBN 978-1-78534-569-2
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
Section 26 Interim risk orders
122 Section 26 provides that a sheriff may make an interim TERO while the main application
under section 22 is being determined The sheriff may make such an order if the sheriff
considers it just to do so (subsection (1)) and such an order may contain prohibitions or
requirements (or both) in relation to the person in respect of whom the order is to have effect
(subsection (2)) Those prohibitions or requirements may relate to things to be done or not done
in any part of Scotland or anywhere outwith Scotland (subsection (3))
123 Subsection (4) provides that an interim TERO will only have effect for a fixed period
specified in the order and will cease to have effect on the determination of the main application
if that fixed period has not already expired
124 Subsection (5) allows for an application for variation or discharge of an interim TERO
(or a requirement or prohibition in the order) to be made to a sheriff in the sheriffdom of the
sheriff who made the interim order by the person in respect of whom the order was made or the
chief constable (subsection (6))
Section 27 Appeals risk orders
125 Section 27 provides for an appeals process in relation to TEROs and interim TEROs and
any order varying or renewing such a TERO or interim TERO The person in respect of whom
the order was made or the chief constable may appeal against any of these orders
Offences and supplementary provision
Section 28 Offences
126 Section 28 makes provision about breach of TEPOs and TEROs
127 Subsections (1) and (2) provide that a person commits an offence if that person does
anything which the person is prohibited from doing by an order or fails to do anything which the
person is required to do by a TEPO or a TERO or an interim TEPO or TERO
128 Subsection (3) makes provision about penalties in relation to these offences A person
who commits an offence under this section is liable on summary conviction to imprisonment for
a term not exceeding 12 months or a fine not exceeding the statutory minimum (or both) On
conviction on indictment that person is liable to imprisonment for a term not exceeding five
years or a fine (or both)
Section 29 Enforcement of other UK orders
129 Section 29 provides that the Scottish Ministers may modify by regulations the list of
orders at section 28(2) so that a breach of those orders in Scotland constitutes an offence under
section 28(1) The orders which may be added are ―relevant UK orders Those are described in
subsection (2) as orders under the law of England and Wales or Northern Ireland which appear to
the Scottish Ministers to be equivalent or similar to TEPOs TEROs or interim TEPOs or
TEROs
19
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
Section 30 Interpretation of Part 4
130 Section 30 defines certain terms used in Part 4
PART 5 - STRATEGY AND REPORTING
Section 31 Trafficking and exploitation strategy
131 Section 31 places a duty on the Scottish Ministers to prepare a trafficking and
exploitation strategy The strategy under this section is a strategy which sets out such actions
arrangements and outcomes as the Scottish Ministers consider appropriate in relation to the
conduct which constitutes an offence under this Act
132 Subsection (3) lists some of the matters which may be set out in the strategy though that
list is not exhaustive Those matters include for example training and awareness raising in
relation to the detection and prevention of the conduct which constitutes an offence of human
trafficking or an offence under section 4
Section 32 Review and publication of strategy
133 Subsection (1) of section 32 provides that the strategy prepared under section 31 must be
reviewed by the Scottish Ministers every three years Following a review the Scottish Ministers
are required by subsection (2) to prepare a report on the review including an assessment of the
extent to which the strategy has been complied with and may prepare a revised strategy If a
decision is taken following such a review not to prepare a revised strategy the Scottish Ministers
must set out their reasons for that decision
134 Subsection (4) places a duty on the Scottish Ministers to consult with those likely to have
an interest in the strategy before preparing or reviewing the strategy Those likely to have an
interest include but are not limited to businesses support agencies faith based groups etc
135 Subsection (5) requires the Scottish Ministers to publish and lay before the Scottish
Parliament each strategy and report prepared under this section
Section 33 Duty to co-operate on strategy
136 Section 33 provides that Scottish public authorities as specified in regulations that may
be made by the Scottish Ministers must provide such information and assistance as the Scottish
Ministers may reasonably require and otherwise co-operate with the Scottish Ministers in the
preparation or review of the strategy A specified public authority could include for example
Police Scotland and local authorities
Section 34 Duty to notify and provide information about victims
137 Section 34 places a duty on specified Scottish public authorities to notify the chief
constable of the Police Service of Scotland about a person who is or appears to be a victim of
20
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
an offence under section 1 or section 4 This duty would not affect any other general right to
report information relating to crime
138 Subsection (2) requires that a notification relating to an adult is anonymised and does not
include any information that identifies the adult or enables the adult to be identified unless the
adult consents to that data being provided
139 Subsection (3) provides that the Scottish Ministers may by regulations specify the
Scottish public authorities who are to be subject to this duty and may make provision about the
information to be included in the notification The regulations will be subject to the negative
procedure
PART 6 ndash FINAL PROVISIONS
Section 35 Offences by bodies corporate etc
140 Section 35 provides that where an offence under the Bill was committed by a body
corporate or a Scottish partnership or other unincorporated association and it is proved that the
offence was committed with the consent or connivance of or was attributable to any neglect on
the part of a relevant individual or someone purporting to be acting in the capacity of a relevant
individual that individual as well as the body corporate partnership or unincorporated
association commits the offence and is liable to be proceeded against and punished accordingly
141 Subsection (2) defines what is meant by a ―relevant individual for the purpose of this
section
Section 36 Interpretation
142 Section 36 defines certain terms for the purposes of the Bill for example the definition
of ―travel
Section 37 Regulations
143 The Scottish Ministers are given various powers under this Bill to make regulations
Section 37 provides for the parliamentary procedure which is to be applicable in relation to each
of those powers
Section 38 Ancillary provision
144 Section 38 provides that the Scottish Ministers may make regulations containing such
incidental supplementary consequential transitional transitory or saving provision as they
consider necessary or expedient for the purposes of or in connection with the provisions of the
Bill
21
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
Section 39 Minor and consequential amendments
145 Section 39 introduces the schedule which makes minor amendments and amendments
consequential on the provisions of the Bill Given their replacement in Part 1 of the Bill the
schedule repeals the current offences in relation to human trafficking (section 22 of the 2003 Act
and section 4 of the 2004 Act) and slavery servitude and forced or compulsory labour (section
47 of the 2010 Act)
Section 40 Crown application
146 Section 40(1) provides that none of the provisions made by or under the Act are capable
of making the Crown criminally liable In accordance with subsection (2) enforcement of
offences against the Crown is to be done by the Scottish Ministers or any other public body or
office-holder with responsibility for enforcing the provision applying to the Court of Session for
a civil declarator of non-compliance This provision does not apply to persons in the public
service of the Crown
Section 41 Commencement
147 Section 41 provides that sections 36 37 38 40 41 and 42 of the Bill come into force on
the day after Royal Assent All other provisions are to come into force on a day appointed by
regulations made by the Scottish Ministers
22
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
FINANCIAL MEMORANDUM
INTRODUCTION
1 This document relates to the Human Trafficking and Exploitation (Scotland) Bill (―the
Bill) introduced in the Scottish Parliament on 11 December 2014 It has been prepared by the
Scottish Government to satisfy Rule 932 of the Parliamentrsquos Standing Orders It does not form
part of the Bill and has not been endorsed by the Parliament
2 The purpose of the Bill is to consolidate and strengthen the existing criminal law against
human trafficking and exploitation and enhance the status and support provided to victims Bill
provisions are in the following Partsmdash
Part 1 (Offences) includes provision on the creation of a single offence of human trafficking
for all types of exploitation of both adults and children establishes statutory aggravators of
human trafficking for use with other crimes and reframes the current standalone offence of
slavery servitude and forced or compulsory labour
Part 2 (Protection of victims) includes provision on prosecutorial guidelines for the
prosecution of victims and provision about the support and assistance to which adult victims
are entitled
Part 3 (Confiscation of property) includes provision on detention and forfeiture of property
and proceeds of crime
Part 4 (Trafficking and exploitation prevention and risk orders) includes provision on
two new preventive orders the trafficking and exploitation prevention order and the
trafficking and exploitation risk order
Part 5 (Strategy and reporting) includes provision on the trafficking and exploitation
strategy and the duty on specified Scottish public authorities to notify and provide
information about victims
Part 6 contains general and ancillary provisions
3 This Financial Memorandum considers the financial implications of each of the elements
of the Bill where relevant
BACKGROUND
4 Before considering the financial implications associated with the specific provisions
within the Bill it is important to consider both the current estimated extent of human trafficking
in Scotland and existing activity by public bodies and others in response to this issue
23
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
Extent of human trafficking in Scotland
5 Human trafficking is by its nature a hidden crime The National Referral Mechanism
(NRM) is the process set up by the UK Government to identify and support victims of trafficking
in the UK The NRM is also the mechanism by which the UK Human Trafficking Centre
collects data about potential victims of trafficking Information about suspected child and adult
victims of human trafficking is referred by relevant ―first responder organisations such as the
police and third sector bodies for example Migrant Help and the Trafficking Awareness Raising
Alliance (TARA) Referrals relate to victims trafficked from outside and within the UK The
table below summarises the most recent available information on NRM referrals from first
responder organisations in Scotland
Table 1 Recent referrals from first responders in Scotland of potential child and adult
human trafficking victims to the National Referral Mechanism
2012 2013
Adults 67 77
Children 29 22
Total 96 99
of all UK Referrals 8 6
Source National Crime Agency National Referral Mechanism Statistics 2012 and 20131
6 Various reports confirm that the number of victims referred through the NRM is likely to
be a significant underestimate of the actual number of potential victims of trafficking For
example the Equality and Human Rights Commission Inquiry into Human Trafficking in
Scotland (2011) noted ―estimates of identified potential victims do not reflect what is likely to be
a much greater number of unidentified victims2
7 The UK National Crime Agency (NCA) Strategic Assessment of the Nature and Scale of
Human Trafficking in the UK3 aims to provide an indication of the nature and scale of human
trafficking beyond the number of referrals to the NRM The assessment is produced using
intelligence held by the NCA the NRM and intelligence information collected from agencies
such as Police Scotland the Home Office Gangmastersrsquo Licensing Authority and non-
government organisations The assessment removes information of potential victims referred to
the NRM who have received a negative ―reasonable grounds or ―conclusive decision (ie it
has been confirmed that they are not victims of trafficking) or duplicate information about
individuals (ie the same person has been referred more than once or by more than one agency)
to show a total number of ―unique potential victims of trafficking The NCA Assessment for
2013 indicated that there were significantly more unique potential victims of human trafficking
identified across the UK than the numbers referred to the NRM even excluding those that
received a negative decision and that the number of unique victims was increasing
1 httpwwwnationalcrimeagencygovukpublications399-nca-strategic-assessment-the-nature-and-scale-of-
human-trafficking-in-2013file 2httpwwwequalityhumanrightscomsitesdefaultfilesdocumentsScotlandHuman_Trafficking_in_Scotland_inq
uiry_into_human_trafficking_in_scotland-full-report_pdf_pdf 3 httpwwwnationalcrimeagencygovukpublications399-nca-strategic-assessment-the-nature-and-scale-of-
human-trafficking-in-2013file
24
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
Table 2 Comparison of recent UK referrals to the National Referral Mechanism and the
National Crime Agency Strategic Assessment of the Scale of Human Trafficking
2012 2013 Change
Referred to NRM 778 1095 +41
NCA Assessment No of
Unique Potential Victims
Identified
2255 2744 +22
Source National Crime Agency Strategic Assessment of the Nature and Scale of Human
Trafficking in the UK4
8 For Scotland the NCA Assessment for 2013 identified 55 unique potential victims of
human trafficking compared with 99 referrals to the NRM It is not known why in contrast to
the position in England and Wales the NCA Assessment for Scotland is lower than the NRM
referrals although it will exclude potential victims who received a negative conclusive decision
and duplicate referrals However these numbers must be treated with significant caution There
remains strong conviction amongst law enforcement bodies and victims organisations that there
are more victims of trafficking than are identified and that even once identified victims are
often unwilling to engage with authorities or identify themselves as having been trafficked For
the purpose of this Financial Memorandum the Scottish Government has accepted the NCA
assessment that there are likely to be between two and three times as many potential victims of
trafficking as are currently identified through the NRM This assessment is based on the Scottish
Governmentrsquos best understanding of the hidden nature of this crime and the known reluctance of
some victims to identify their trafficked status or to engage with public authorities
Criminal justice response to human trafficking and exploitation
9 There have been relatively few prosecutions and convictions for human trafficking
offences under existing criminal justice legislationmdash
The Criminal Justice (Scotland) Act 20035 (―the 2003 Act) provides for offences of
trafficking for the purposes of exploitation by way of prostitution
The Asylum and Immigration (Treatment of Claimants etc) Act 20046 (―the 2004
Act) provides for offences of trafficking for labour and other forms of exploitation
The Criminal Justice and Licensing (Scotland) Act 20107 (―the 2010 Act) amended
and extended the 2003 and 2004 Acts and created a standalone offence of holding
someone in slavery or servitude or requiring a person to perform forced or
compulsory labour
10 The first successful convictions for human trafficking in Scotland were in 2011 under
section 22 of the 2003 Act for trafficking for the purposes of prostitution During 2013 a total of
four people were convicted of human trafficking offences - one person under section 22 of the
2003 Act and three people under section 4 of the 2004 Act for trafficking for forced marriage
4 httpwwwnationalcrimeagencygovukpublications399-nca-strategic-assessment-the-nature-and-scale-of-
human-trafficking-in-2013file 5 httpwwwlegislationgovukasp20037
6 httpwwwlegislationgovukukpga200419
7 httpwwwlegislationgovukasp201013
25
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
The average custodial sentence length for those convicted of trafficking offences was 847 days
(just under two years and four months) as well as any confiscation order imposed
11 Although the number of convictions for trafficking offences has been small police and
the Crown Office and Procurator Fiscal Service (COPFS) have confirmed that even though it is
not possible to always prove the trafficking offence where a credible suspicion exists people
suspected of involvement with trafficking can and often are prosecuted and convicted for other
crimes such as crimes associated with prostitution forced marriage immigration offences and
drugs offences etc
12 Police Scotland has established a dedicated National Human Trafficking Unit to enhance
the police response to human trafficking through awareness raising intelligence gathering
training and providing divisions with advice and specialist knowledge The COPFS has
appointed dedicated expert fiscals to prosecute human trafficking offences
Support for victims of trafficking
13 The Scottish Government currently allocates direct grant funding to non-government
organisations to provide and facilitate immediate support and assistance to the adult victims of
human trafficking This support can include immediate safe accommodation psychological
support assistance in accessing medical treatment material assistance interpretation and
translation and assistance either with repatriation or securing longer-term access to mainstream
services and support such as welfare benefits and housing The provision of support and
assistance is not conditional on the potential victim being willing to participate in the criminal
justice process Under the NRM victims of trafficking are guaranteed ―a recovery and reflection
period to recover from their experience escape the influence of those alleged to have trafficked
or exploited them and consider whether to engage with authorities The Council of Europe
Convention on Action Against Trafficking in Human Beings8 provides for a reflection period of
at least 30 days for all trafficked victims when there are reasonable grounds to believe that the
person concerned is a victim The current minimum recovery and reflection period in Scotland
and the rest of the UK is 45 days
14 In 2013-14 total grant funding of pound723000 was provided by the Scottish Government
towards the costs of ensuring immediate support and assistance for the adult victims and
potential victims of trafficking in Scotland This funding was provided through two non-
government organisationsmdash
the TARA Service which works with women aged 18 years and over across
Scotland where there are concerns that they have been trafficked for commercial
sexual exploitation and
Migrant Help a UK-wide organisation providing support and advice services to
migrants including new asylum claimants refugees EU nationals etc
15 Support for the child victims of trafficking is co-ordinated by local authorities as part of
their child protection arrangements and in line with the policy intention that children remain
8 httpwwwcoeinttdghlmonitoringtraffickingdocsconvntnCETS197_enasp
26
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
children first and that their needs should be treated accordingly The Scottish Government has
produced a toolkit for agencies working with children and young people to ensure that staff are
able to identify trafficked children and make appropriate referrals so that victims can receive
protection and support The toolkit is designed to be used in conjunction with National Child
Protection Guidance9 which was first published in 2010 and refreshed in 2014 and other
relevant national and international guidance Information about current expenditure on child
victims of trafficking is not recorded separately from information about wider expenditure on
child protection services
Lord Advocate guidance on prosecution policy
16 In his letter of 21 January 2013 to the Scottish Parliament European and External
Relations Committee10
the Lord Advocate set out the current arrangements for fiscals
considering the prosecution of a confirmed or potential victim of human trafficking where it is
believed or claimed that the crime was committed as a direct consequence of the personrsquos
trafficked status The letter set out the basis for the current Lord Advocatersquos guidance to
prosecutors including the presumption against the prosecution of a credible trafficking victim
for crimes that arise as a consequence of the victimrsquos trafficked status
Human trafficking strategic approach awareness raising and training
17 The first Scottish Human Trafficking Summit was hosted by the Cabinet Secretary for
Justice in October 2012 The summit brought together key law enforcement public private and
third sector organisations with an interest in human trafficking Following the summit a number
of strategic collaborative actions were agreed and progressed including with reference to
awareness raising and training for frontline staff data collection and analysis identification care
and support for both child and adult victims of trafficking and enhancing enforcement
18 One specific workstream related to awareness raising and training of front-line staff
likely to come into contact with trafficking victims or potential instances of trafficking
Following the summit Police Scotland with support from the Scottish Government and others
prepared published and circulated widely an awareness raising leaflet ndash Reading the Signs11
ndash to
assist police officers and staff in other front line posts in identifying the signs of potential
trafficking The Scottish Government also participated with the UK Government in a UK-wide
public awareness raising campaign about modern slavery and trafficking
19 In addition to general awareness raising specific training material was prepared for key
front-line staff For example all police officers were required to undertake an e-learning course
on human trafficking A special leaflet for health workers was prepared and circulated by NHS
Health Scotland An e-learning module for health workers about their role in identifying and
9 httpwwwscotlandgovukPublications2014053052
10httpwwwscottishparliamentukS3_EuropeanandExternalRelationsCommitteeGeneral20DocumentsLetterfro
mTheLordAdvocatepdf 11
httpwwwscotlandpoliceukassetspdf174967human-traffickingview=Standard
27
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
responding to victims of trafficking was made available through the National Gender Based
Violence and Health Programme12
IMPACT OF SPECIFIC PROVISIONS
PART 1 - OFFENCES
Single trafficking offence
20 The Bill establishes a new single offence of human trafficking for all types of
exploitation for both adults and children replacing existing separate criminal offences (see
paragraph 9 above) As noted above to date there have been relatively small numbers of
prosecutions under existing trafficking offences
21 The maximum penalty for conviction on indictment for the single trafficking offence will
be life imprisonment compared with a maximum of 14 years for the current separate offences
Although it will be for the court to decide how to sentence people convicted under the new single
offence in any given case it is likely that the availability of a higher maximum sentence will
have cost implications for the Scottish Prison Service (SPS)
Revised slavery servitude and forced labour offence
22 The Bill will also repeal and replace the existing exploitation offence within section 47 of
the 2010 Act which criminalises holding someone in slavery or servitude or requiring them to
perform compulsory or forced labour The offence will be revised and strengthened to allow the
court to consider in assessing whether a person has been a victim of an offence the victimrsquos
characteristics such as age physical or mental illness disability or where relevant family
relationships The maximum penalty for the offence will be increased from 14 years for the
current offence to life imprisonment for a conviction on indictment
Statutory aggravators
23 The Bill makes provision for statutory aggravators which apply in cases where an
accused person commits an offence connected with human trafficking and for when the offence
is committed in connection with the accusedrsquos position as a public official The court must take
the aggravation into account in determining the appropriate sentence if it is proved that the
offence is aggravated in this way The statutory aggravator is not anticipated to have any
substantial financial implications for public private or third sector bodies or for individuals
Costs on the Scottish Administration
24 Consolidating and clarifying the existing criminal law on trafficking and exploitation
alongside other measures arising from the Bill and the trafficking and exploitation strategy
including training and awareness raising and support for victims should increase the potential
for successful investigations prosecutions and convictions of human trafficking and exploitation
offences There have been six successful prosecutions for a specific trafficking offence to date in
Scotland with an average custodial sentence length of two years and four months against a
12
httpwwwgbvscotnhsuk
28
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
maximum possible sentence of 14 years The maximum number of prosecutions in any one year
was four individuals in two separate cases
25 Police and prosecutors already have in place specialist resources for investigating and
prosecuting human trafficking and exploitation offences and these provisions will not add to
these costs Law enforcement agencies have confirmed that whilst the number of prosecutions
for specific trafficking offences has been low where victims are identified but are unwilling to
testify individuals suspected of trafficking and exploitation will be prosecuted in court for other
related offences The Lord Advocate has identified that ―If we donrsquot have the evidence [to
prosecute for a specific human trafficking offence] we prosecute for fraud ID theft or asylum
and immigration offences13
26 The Scottish Government does not anticipate therefore significant additional cost
implications for law enforcement agencies or courts as cases will often proceed with a
trafficking offence alongside or in place of other related offences For the same reason the
Scottish Government does not anticipate significant additional cost on the Scottish Legal Aid
Board (SLAB) However if it is assumed that the number of successful trials proceeding in any
single year doubles from two to four there would be some additional costs on the COPFS the
Scottish Court Service (SCS) and SLAB based on the average unit costs for cases proceeded
either through Sheriff Court Solemn procedure or through the High Court These estimated costs
depending on whether cases are proceeded through the High Court or Sheriff Court solemn
procedure are illustrated in the table below
Table 3 Estimated unit costs of additional trial procedures through either High Court or
Sheriff Court solemn procedure (pound000)
Average prosecution
costs per procedure
(COPFS)
Average court costs
per procedure (SCS)
Average legal aid
costs per procedure
(SLAB)
Sheriff Court solemn
procedure (pound000) pound49 pound19 pound16
High Court (pound000) pound556 pound90 pound135
Estimated average
costs of 2 additional
trial procedures 4
accused per annum
(pound000)
pound99-pound1112 pound38-pound180 pound64-pound540
Source costs of the Criminal Justice System in Scotland Dataset (2013)14
27 There will also be costs to the SPS both through any increase in the number of successful
convictions for trafficking and exploitation offences and an anticipated increase in the average
length of custodial sentence for these crimes It is not possible to know for certain the total
13
httpwwwdailyrecordcouknewsscottish-newsonly-three-successful-prosecutions-brought-4457684 14httpwwwscotlandgovukTopicsStatisticsBrowseCrimeJusticePublicationscostcrimjustsc
otcostcrimjustdatasethttpwwwscotlandgovukTopicsStatisticsBrowseCrimeJusticePublicationscostcrimj
ustscotcostcrimjustdataset
29
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
number of future convictions or what sentencing decisions might be taken by courts in individual
cases
28 The table below illustrates the potential cost implications of either maintaining or
increasing the current maximum number of convictions in any individual year from four to eight
convictions For the purpose of the calculation it is assumed that the average custodial sentence
length for trafficking and exploitation offences will increase from two years and four months
(classified as a short-term sentence) to over four years (classified as a long-term sentence) as
increasing the maximum sentence to life imprisonment is anticipated to increase the average
sentence for a trafficking offence The estimated average annual cost of a prison place based on
SPS figures is pound42500 Taking account of the current early release arrangements for long-term
prisoners and the overlapping of individual sentences would result in an estimated increase of 8
to 21 total prison places each year after four years ndash ie with an additional four people receiving
custodial sentences each year and released by the Parole Board at the halfway point of their
sentence or automatically at the two-thirds point The total costs to the SPS will be within a
range of pound340000 to pound890000 These costs will fit within the overall budget costs to the SPS
As at 17 October 2014 there were 7731 people in custody in Scotland An additional 21 places
accounts for 03 of the total prison population
Table 4 Estimated range of costs to the Scottish Prison Service from increasing the
number and average length of successful prosecutions for trafficking offences
Year 1 Year 2 Year 3 Year 4
Additional Prison places 0-4 4-12 8-17 8-21
Additional Cost (pound000) pound0-pound170 pound170- pound510 pound340-pound720 pound340-pound890
Table 5 Estimated range of combined costs for trial procedures and prison places
Year 1 Year 2 Year 3 Year 4
Additional Cost (pound000) pound20-pound353 pound190- pound693 pound360-pound900 pound360-pound1073
Costs on other bodies individuals and businesses
29 There will be no new costs falling on other bodies individuals and businesses as a
consequence of these sections but see the section below with reference to victim support
Costs on local authorities
30 There will be no new costs falling on local authorities as a consequence of these specific
sections
PART 2 - PROTECTION OF VICTIMS
Duty on the Lord Advocate to publish guidance about the prosecution of credible trafficking and
exploitation victims who have committed offences
Costs on the Scottish Administration
31 As noted above the Lord Advocate already prepares and publishes guidance to fiscals
about the prosecution of credible victims of human trafficking for crimes committed as a direct
30
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
consequence of their trafficking status The requirement to publish such guidance would in
future be statutory However there will be no new costs on the Scottish Government or the
COPFS as a consequence of placing the requirement for the Lord Advocate to issue this
guidance on a statutory basis
Costs on other bodies individuals and businesses
32 There will be no new costs falling on other bodies individuals and businesses as a
consequence of these sections
Costs on local authorities
33 There will be no new costs falling on local authorities as a consequence of these sections
Ensure the rights of victims to access and support
34 The Bill will place a statutory duty on the Scottish Ministers to secure the provision of
relevant immediate support and recovery services for adult victims of trafficking subject to an
assessment of need The Bill will specify those victims or potential victims entitled to support
and the minimum time periods during which such services should be provided Specifically the
Bill will require Ministers to provide support and assistance based on each individualrsquos assessed
needs during the recovery and reflection period (currently 45 days) during which the
individualrsquos trafficking status is determined The Bill specifies minimum support and assistance
that should be considered as part of the assessment including access to housing treatment
interpretation services etc The Scottish Ministers have the flexibility to provide support and
assistance outwith the specified reflection and recovery period where this is considered
appropriate
35 As noted above the Scottish Ministers already provide grant funding totalling pound723000
to third sector organisations to assist identified adult potential victims of trafficking Provision of
support to adult victims will be placed on a statutory basis The number of adult potential victims
of trafficking referred through the NRM during 2013 was 77 although not all of these will have
requested assistance or received the full range of support services It is assumed that other
actions arising from the Bill including the single offence and publication of the trafficking and
exploitation strategy will result over time in an increase in identified victims and requests for
assistance and support
Costs on the Scottish Administration
36 The Scottish Government anticipates that improved awareness raising and training of
front-line staff will result in an increase in the number of victims identified over time It is not
possible to know how quickly this improvement will be achieved However between 2012 and
2013 the number of potential identified victims across the UK identified through the NCA
strategic assessment and NRM increased by 22 and 41 respectively Given the need for
awareness raising and training to impact the Scottish Government does not anticipate a similar
scale of increase in the immediate term but the Government considers it reasonable to anticipate
a possible increase of between 10 and 20 per annum in the overall number of requests for
assistance and support each year over the next four years Assuming a similar mix of needs as
31
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
current victims the increased costs to the Scottish Government on top of existing funding
would range between pound290000 to pound580000 per annum by year four
Table 6 Estimated range of costs increases for victim support and assistance (pound000)
Year 1 Year 2 Year 3 Year 4
Additional Cost (pound000) pound0-pound140 pound140-pound280 pound220-pound430 pound290-pound580
Costs on other bodies individuals and businesses
37 There will be no additional costs on other public bodies individuals or businesses
associated with these specific provisions There will be no direct additional costs falling on third
sector organisations as a consequence of the specific provisions It is likely however that all or
part of the additional funding identified above will be directed by the Scottish Government
through relevant third sector organisations with the expertise to provide immediate support and
protection to victims
Costs on local authorities
38 The Bill creates no new legislative requirements for the delivery of childrenrsquos services
recognising that this already exists It is therefore not anticipated that the Bill will result in any
quantifiable additional costs on local authorities or other public bodies as a result of support for
child victims Child victims of trafficking are supported as part of the Getting It Right for Every
Child (GIRFEC) approach any child whether identified as trafficked or not will be assessed on
the basis of its needs It is anticipated that as a consequence of the strategy (for which the Bill
provides) that more children may be identified as trafficked It is noted however that various
reports including most recently the UK Governmentrsquos NRM Review Report15
have found that
children who are already receiving support from relevant authorities in the UK are often not
identified as trafficked victims because of lack of awareness of the referral process It may be
that actions arising from the development of the strategy and dialogue with stakeholders will
give rise to additional activity or costs with reference to child victims of trafficking but these are
not known and cannot be estimated at this time
PART 3 - CONFISCATION OF PROPERTY
39 The Bill will provide police with powers to detain the property such as cars boats etc of
a person arrested for a trafficking offence This power will be exercised at the time of arrest and
is not expected to impose any additional costs on the police or others
Costs on the Scottish Administration
40 There will be no additional costs on the Scottish Government as a result of these
provisions Individuals can apply to the court to have vehicles ships or aircraft released from
detention This will be considered as part of the overall case and will not add to the costs to the
criminal justice system
15
httpsnrmhomeofficegovuk
32
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
Costs on other bodies individuals and businesses
41 There will be no additional costs on other public bodies individuals or businesses
including Police Scotland as a result of these specific provisions
Costs on local authorities
42 There will be no additional costs on local authorities as a result of these specific
provisions
PART 4 - TRAFFICKING AND EXPLOITATION PREVENTION AND RISK ORDERS
Introduce new measures to disrupt and prevent trafficking and exploitation
43 The Bill will introduce two new civil orders and associated interim orders to assist in
preventing trafficking and exploitation Trafficking and Exploitation Prevention Orders (TEPOs)
and Trafficking and Exploitation Risk Orders (TEROs) Where an individual has been convicted
of a trafficking or exploitation offence or an offence with a statutory trafficking aggravator a
TEPO may be imposed by a court where there is a risk that that individual may commit a further
human trafficking offence and it is necessary to make the order to protect people from the
physical or psychological harm which might occur if such an offence were committed The
TEPO will prevent the individual from engaging in activities described in the order Where a
person has not been convicted of a trafficking or exploitation offence but a court considers that
the person presents a significant risk of harm to others through the individual committing a
trafficking or exploitation offence the court can impose a TERO restricting specific activities or
imposing requirements These orders will be civil but breach of an order will constitute a
criminal offence with a maximum penalty of five years in prison available to the court
44 The Bill will categorise the trafficking and exploitation offences as lifestyle offences in
order to automatically trigger provisions within the Proceeds of Crime Act 2002 (―the 2002
Act) The definition of an offence as a ―lifestyle offence allows for proceedings under the
2002 Act to confiscate assets or monies from the individual convicted of the offence
Costs on the Scottish Administration
45 The purpose of TEPOs and TEROs is to prevent criminal activity associated with
trafficking and exploitation from arising There will be some cost implications for law
enforcement organisations which will need to monitor the terms of any order imposed by the
courts However these will be offset by the savings made from being able to intervene at an
early stage of criminality if an order has been breached For the equivalent civil orders within the
UK Modern Slavery Bill the UK Government has estimated potential net savings of between
pound130000 and pound1090000 per annum The Scottish Government has not incorporated any
savings for the purpose of Scottish legislation but expects the costs of implementing TEPOs and
TEROs and detention powers to be at least cost neutral for the Scottish Administration and other
public bodies
33
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
46 The Bill will give courts powers to impose a TEPO at the time of sentencing There will
be no immediate additional costs for the courts or COPFS associated with TEPOs imposed as
part of sentencing The Chief Constable of Police Scotland will also be able to apply to the court
for a TEPO to be imposed on a relevant offender previously convicted of a trafficking offence
There will be costs to Police Scotland in making the application and to the SCS and to SLAB in
considering the application As there have been only six previous convictions for trafficking
offences in Scotland the Scottish Government expects the number of applications for TEPOs for
previous convictions to be small one-off and will not add to the overall costs of the criminal
justice system The Chief Constable of Police Scotland can also apply to the court for a TERO
against an individual where it is considered that that individual is likely to commit a trafficking
offence
47 Looking at the equivalent costs for similar civil orders eg Sexual Offences Prevention
Orders the total costs to the SCS the COPFS and SLAB of applying for a TERO or post-
sentencing TEPO are estimated at between pound1000 and pound6000 per order It is not possible to
know how many TEPOs or TEROs might be applied for but assuming a number half the level of
the estimated maximum number of potential convictions for trafficking offences each year (four
to eight) would give estimated costs of between pound2000 (2 x pound1000) and pound24000 (4 x pound6000)
per annum
48 There will be costs to Police Scotland in monitoring TEPOs and TEROs whether
imposed at the time of sentence or by application but this will sit alongside Police Scotlandrsquos
existing crime prevention and investigative responsibilities and is not expected to add to
manpower costs
49 In addition to the costs of imposing and monitoring TEPOs and TEROs there will be
costs associated with prosecuting a breach of a TEPO or TERO Analysis in England and Wales
indicates that breaches of equivalent Serious Crime Prevention Orders are relatively low
Assuming one breach per annum the total combined costs to the COPFS the SCS and SLAB
would be between pound8400 and pound78100 per annum (see the combined costs for either sheriff
court or High Court procedures set out in Table 3 above) Assuming a maximum sentence of
five years the costs to the SPS for additional prison places would be between pound85000 and
pound127500 per annum (ie the pound42500 average costs of a prison place times either two or three
places depending on whether offenders are released early at the halfway or two-thirds point of
their sentence)
50 It is important to remember however that the purpose of TEPOs and TEROs is to
prevent further trafficking and exploitation offences occurring A TEPO or TERO will only be
imposed where a court considers that there is a credible risk of an individual committing such a
crime Any costs associated with the imposition and breach of TEPOs and TEROs needs to be
offset against the potential costs of prosecutions If each TEPO or TERO prevents the costs of a
conviction for an offence as set out in Part 1 above the costs to the Scottish Administration
would be at least cost neutral in terms of saved court and prison places expenditure
34
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
Costs on other bodies individuals and businesses
51 There will be no costs on other bodies businesses or other individuals as a consequence
of these sections
Costs on local authorities
52 There will be no new costs on local authorities as a consequence of these sections
PART 5 - STRATEGY AND REPORTING
Ensure a strategic cross-agency approach to tackling trafficking
53 The Bill places a duty on the Scottish Ministers to prepare publish and regularly review
and update a trafficking and exploitation strategy to assist in ensuring a co-ordinated and
strategic approach to this issue The provisions place a duty on Ministers to consult with such
organisations and individuals as they consider to have a relevant interest in the issues of human
trafficking and exploitation The Bill places a duty on relevant public bodies to be named in
regulations to assist in the preparation and review of the strategy
54 The Bill will place a duty on relevant public authorities to provide anonymised data about
potential human trafficking and exploitation victims to Police Scotland
Costs on the Scottish Administration
55 Activity arising from these provisions within the Bill will build on the activity and
current resources already committed to this area of work
56 Based on similar activities the estimated additional costs to the Scottish Ministers of
preparing and reviewing a trafficking and exploitation strategy will be approximately pound25000
every three years Alongside the preparation and publication of the strategy the Scottish
Ministers would also propose to support additional awareness raising and training activity to
build on the existing awareness raising and training activity already undertaken by relevant
organisations including the NHS Police Scotland and COPFS Consideration would be given to
how best to co-ordinate these resources alongside existing expenditure and activity For the
purposes of the Financial Memorandum and based on current activity additional costs on top of
existing activity are estimated at approximately pound100000 to pound250000 per annum over the first
four years of the Bill This is based on the best estimated costs of preparing and publishing
publicity and guidance material averaged over a number of years The exact costs will depend
on decisions taken in dialogue with stakeholders as part of the preparation of the strategy
57 The Scottish Government anticipates that the costs to relevant public authorities of
providing anonymised data about potential human trafficking victims to Police Scotland will be
marginal Costs to Police Scotland of collating this data will form part of their existing
intelligence gathering activity
35
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
Costs on other bodies individuals and businesses
58 There will be some costs on other bodies individuals and businesses in engaging with the
Scottish Ministers in the preparation and publication of the Strategy For business and
individuals this will be voluntary depending on their willingness to engage For public bodies
their level of engagement will depend on the relevance of the issue of trafficking and
exploitation to their work and their potential contribution to combating this behaviour Any
additional costs are expected to fit within or sit alongside their existing responsibilities for
example with reference to promoting and ensuring equalities and the application of human
rights obligations
Costs on local authorities
59 There will be costs on local authorities associated with engaging in the preparation and
review of the trafficking and exploitation strategy and in awareness raising and training of front-
line staff The additional costs should be marginal on top of the existing guidance and activity
already in place with reference to the identification and support of potential child victims of
trafficking The aim will be to minimise costs for other front-line local authority staff by
adapting the general awareness raising and training materials described above
SUMMARY
60 The table below provides a summary of the costs of each element of the Bill as described
above
Table 7 Summary table of costs for each aspect of the Bill (pound000)
Year 1 Year 2 Year 3 Year 4
Clarifying amp
Strengthening the
Criminal Law ndash Para 28 pound20-pound353 pound190- pound693 pound360-pound900 pound360-pound1073
Ensure the rights of
victims to access and
support - Para 36 pound70-pound140 pound140-pound280 pound220-pound430 pound290-pound580
Introduce new measures to
disrupt and prevent
trafficking pound016
pound0 pound0 pound0
Ensure a strategic cross
agency approach to
tackling trafficking ndash Para
56 pound125-pound275 pound100-pound250 pound100-pound250 pound125-pound275
TOTAL pound215-pound768 pound430-pound1223 pound680-pound1580 pound775-pound1928
16
The Scottish Government considers that the overall costs are at least cost neutral ndash see paragraphs 45 to 50
36
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December
SCOTTISH GOVERNMENT STATEMENT ON LEGISLATIVE
COMPETENCE
On 11 December 2014 the Cabinet Secretary for Justice (Michael Matheson MSP) made the
following statement
―In my view the provisions of the Human Trafficking and Exploitation (Scotland) Bill
would be within the legislative competence of the Scottish Parliament
mdashmdashmdashmdashmdashmdashmdashmdashmdashmdash
PRESIDING OFFICERrsquoS STATEMENT ON LEGISLATIVE
COMPETENCE
On 11 December 2014 the Presiding Officer (Rt Hon Tricia Marwick MSP) made the following
statement
―In my view the provisions of the Human Trafficking and Exploitation (Scotland) Bill
would be within the legislative competence of the Scottish Parliament
37
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December
SP Bill 57ndashEN Session 4 (2014)
HUMAN TRAFFICKING AND EXPLOITATION
(SCOTLAND) BILL
EXPLANATORY NOTES
(AND OTHER ACCOMPANYING DOCUMENTS)
Parliamentary copyright Scottish Parliamentary Corporate Body
Information on the Scottish Parliamentrsquos copyright policy can be found on the website -
wwwscottishparliamentuk
Produced and published in Scotland on behalf of the Scottish Parliamentary Corporate Body by APS
Group Scotland
ISBN 978-1-78534-569-2
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
Section 30 Interpretation of Part 4
130 Section 30 defines certain terms used in Part 4
PART 5 - STRATEGY AND REPORTING
Section 31 Trafficking and exploitation strategy
131 Section 31 places a duty on the Scottish Ministers to prepare a trafficking and
exploitation strategy The strategy under this section is a strategy which sets out such actions
arrangements and outcomes as the Scottish Ministers consider appropriate in relation to the
conduct which constitutes an offence under this Act
132 Subsection (3) lists some of the matters which may be set out in the strategy though that
list is not exhaustive Those matters include for example training and awareness raising in
relation to the detection and prevention of the conduct which constitutes an offence of human
trafficking or an offence under section 4
Section 32 Review and publication of strategy
133 Subsection (1) of section 32 provides that the strategy prepared under section 31 must be
reviewed by the Scottish Ministers every three years Following a review the Scottish Ministers
are required by subsection (2) to prepare a report on the review including an assessment of the
extent to which the strategy has been complied with and may prepare a revised strategy If a
decision is taken following such a review not to prepare a revised strategy the Scottish Ministers
must set out their reasons for that decision
134 Subsection (4) places a duty on the Scottish Ministers to consult with those likely to have
an interest in the strategy before preparing or reviewing the strategy Those likely to have an
interest include but are not limited to businesses support agencies faith based groups etc
135 Subsection (5) requires the Scottish Ministers to publish and lay before the Scottish
Parliament each strategy and report prepared under this section
Section 33 Duty to co-operate on strategy
136 Section 33 provides that Scottish public authorities as specified in regulations that may
be made by the Scottish Ministers must provide such information and assistance as the Scottish
Ministers may reasonably require and otherwise co-operate with the Scottish Ministers in the
preparation or review of the strategy A specified public authority could include for example
Police Scotland and local authorities
Section 34 Duty to notify and provide information about victims
137 Section 34 places a duty on specified Scottish public authorities to notify the chief
constable of the Police Service of Scotland about a person who is or appears to be a victim of
20
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
an offence under section 1 or section 4 This duty would not affect any other general right to
report information relating to crime
138 Subsection (2) requires that a notification relating to an adult is anonymised and does not
include any information that identifies the adult or enables the adult to be identified unless the
adult consents to that data being provided
139 Subsection (3) provides that the Scottish Ministers may by regulations specify the
Scottish public authorities who are to be subject to this duty and may make provision about the
information to be included in the notification The regulations will be subject to the negative
procedure
PART 6 ndash FINAL PROVISIONS
Section 35 Offences by bodies corporate etc
140 Section 35 provides that where an offence under the Bill was committed by a body
corporate or a Scottish partnership or other unincorporated association and it is proved that the
offence was committed with the consent or connivance of or was attributable to any neglect on
the part of a relevant individual or someone purporting to be acting in the capacity of a relevant
individual that individual as well as the body corporate partnership or unincorporated
association commits the offence and is liable to be proceeded against and punished accordingly
141 Subsection (2) defines what is meant by a ―relevant individual for the purpose of this
section
Section 36 Interpretation
142 Section 36 defines certain terms for the purposes of the Bill for example the definition
of ―travel
Section 37 Regulations
143 The Scottish Ministers are given various powers under this Bill to make regulations
Section 37 provides for the parliamentary procedure which is to be applicable in relation to each
of those powers
Section 38 Ancillary provision
144 Section 38 provides that the Scottish Ministers may make regulations containing such
incidental supplementary consequential transitional transitory or saving provision as they
consider necessary or expedient for the purposes of or in connection with the provisions of the
Bill
21
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
Section 39 Minor and consequential amendments
145 Section 39 introduces the schedule which makes minor amendments and amendments
consequential on the provisions of the Bill Given their replacement in Part 1 of the Bill the
schedule repeals the current offences in relation to human trafficking (section 22 of the 2003 Act
and section 4 of the 2004 Act) and slavery servitude and forced or compulsory labour (section
47 of the 2010 Act)
Section 40 Crown application
146 Section 40(1) provides that none of the provisions made by or under the Act are capable
of making the Crown criminally liable In accordance with subsection (2) enforcement of
offences against the Crown is to be done by the Scottish Ministers or any other public body or
office-holder with responsibility for enforcing the provision applying to the Court of Session for
a civil declarator of non-compliance This provision does not apply to persons in the public
service of the Crown
Section 41 Commencement
147 Section 41 provides that sections 36 37 38 40 41 and 42 of the Bill come into force on
the day after Royal Assent All other provisions are to come into force on a day appointed by
regulations made by the Scottish Ministers
22
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
FINANCIAL MEMORANDUM
INTRODUCTION
1 This document relates to the Human Trafficking and Exploitation (Scotland) Bill (―the
Bill) introduced in the Scottish Parliament on 11 December 2014 It has been prepared by the
Scottish Government to satisfy Rule 932 of the Parliamentrsquos Standing Orders It does not form
part of the Bill and has not been endorsed by the Parliament
2 The purpose of the Bill is to consolidate and strengthen the existing criminal law against
human trafficking and exploitation and enhance the status and support provided to victims Bill
provisions are in the following Partsmdash
Part 1 (Offences) includes provision on the creation of a single offence of human trafficking
for all types of exploitation of both adults and children establishes statutory aggravators of
human trafficking for use with other crimes and reframes the current standalone offence of
slavery servitude and forced or compulsory labour
Part 2 (Protection of victims) includes provision on prosecutorial guidelines for the
prosecution of victims and provision about the support and assistance to which adult victims
are entitled
Part 3 (Confiscation of property) includes provision on detention and forfeiture of property
and proceeds of crime
Part 4 (Trafficking and exploitation prevention and risk orders) includes provision on
two new preventive orders the trafficking and exploitation prevention order and the
trafficking and exploitation risk order
Part 5 (Strategy and reporting) includes provision on the trafficking and exploitation
strategy and the duty on specified Scottish public authorities to notify and provide
information about victims
Part 6 contains general and ancillary provisions
3 This Financial Memorandum considers the financial implications of each of the elements
of the Bill where relevant
BACKGROUND
4 Before considering the financial implications associated with the specific provisions
within the Bill it is important to consider both the current estimated extent of human trafficking
in Scotland and existing activity by public bodies and others in response to this issue
23
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
Extent of human trafficking in Scotland
5 Human trafficking is by its nature a hidden crime The National Referral Mechanism
(NRM) is the process set up by the UK Government to identify and support victims of trafficking
in the UK The NRM is also the mechanism by which the UK Human Trafficking Centre
collects data about potential victims of trafficking Information about suspected child and adult
victims of human trafficking is referred by relevant ―first responder organisations such as the
police and third sector bodies for example Migrant Help and the Trafficking Awareness Raising
Alliance (TARA) Referrals relate to victims trafficked from outside and within the UK The
table below summarises the most recent available information on NRM referrals from first
responder organisations in Scotland
Table 1 Recent referrals from first responders in Scotland of potential child and adult
human trafficking victims to the National Referral Mechanism
2012 2013
Adults 67 77
Children 29 22
Total 96 99
of all UK Referrals 8 6
Source National Crime Agency National Referral Mechanism Statistics 2012 and 20131
6 Various reports confirm that the number of victims referred through the NRM is likely to
be a significant underestimate of the actual number of potential victims of trafficking For
example the Equality and Human Rights Commission Inquiry into Human Trafficking in
Scotland (2011) noted ―estimates of identified potential victims do not reflect what is likely to be
a much greater number of unidentified victims2
7 The UK National Crime Agency (NCA) Strategic Assessment of the Nature and Scale of
Human Trafficking in the UK3 aims to provide an indication of the nature and scale of human
trafficking beyond the number of referrals to the NRM The assessment is produced using
intelligence held by the NCA the NRM and intelligence information collected from agencies
such as Police Scotland the Home Office Gangmastersrsquo Licensing Authority and non-
government organisations The assessment removes information of potential victims referred to
the NRM who have received a negative ―reasonable grounds or ―conclusive decision (ie it
has been confirmed that they are not victims of trafficking) or duplicate information about
individuals (ie the same person has been referred more than once or by more than one agency)
to show a total number of ―unique potential victims of trafficking The NCA Assessment for
2013 indicated that there were significantly more unique potential victims of human trafficking
identified across the UK than the numbers referred to the NRM even excluding those that
received a negative decision and that the number of unique victims was increasing
1 httpwwwnationalcrimeagencygovukpublications399-nca-strategic-assessment-the-nature-and-scale-of-
human-trafficking-in-2013file 2httpwwwequalityhumanrightscomsitesdefaultfilesdocumentsScotlandHuman_Trafficking_in_Scotland_inq
uiry_into_human_trafficking_in_scotland-full-report_pdf_pdf 3 httpwwwnationalcrimeagencygovukpublications399-nca-strategic-assessment-the-nature-and-scale-of-
human-trafficking-in-2013file
24
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
Table 2 Comparison of recent UK referrals to the National Referral Mechanism and the
National Crime Agency Strategic Assessment of the Scale of Human Trafficking
2012 2013 Change
Referred to NRM 778 1095 +41
NCA Assessment No of
Unique Potential Victims
Identified
2255 2744 +22
Source National Crime Agency Strategic Assessment of the Nature and Scale of Human
Trafficking in the UK4
8 For Scotland the NCA Assessment for 2013 identified 55 unique potential victims of
human trafficking compared with 99 referrals to the NRM It is not known why in contrast to
the position in England and Wales the NCA Assessment for Scotland is lower than the NRM
referrals although it will exclude potential victims who received a negative conclusive decision
and duplicate referrals However these numbers must be treated with significant caution There
remains strong conviction amongst law enforcement bodies and victims organisations that there
are more victims of trafficking than are identified and that even once identified victims are
often unwilling to engage with authorities or identify themselves as having been trafficked For
the purpose of this Financial Memorandum the Scottish Government has accepted the NCA
assessment that there are likely to be between two and three times as many potential victims of
trafficking as are currently identified through the NRM This assessment is based on the Scottish
Governmentrsquos best understanding of the hidden nature of this crime and the known reluctance of
some victims to identify their trafficked status or to engage with public authorities
Criminal justice response to human trafficking and exploitation
9 There have been relatively few prosecutions and convictions for human trafficking
offences under existing criminal justice legislationmdash
The Criminal Justice (Scotland) Act 20035 (―the 2003 Act) provides for offences of
trafficking for the purposes of exploitation by way of prostitution
The Asylum and Immigration (Treatment of Claimants etc) Act 20046 (―the 2004
Act) provides for offences of trafficking for labour and other forms of exploitation
The Criminal Justice and Licensing (Scotland) Act 20107 (―the 2010 Act) amended
and extended the 2003 and 2004 Acts and created a standalone offence of holding
someone in slavery or servitude or requiring a person to perform forced or
compulsory labour
10 The first successful convictions for human trafficking in Scotland were in 2011 under
section 22 of the 2003 Act for trafficking for the purposes of prostitution During 2013 a total of
four people were convicted of human trafficking offences - one person under section 22 of the
2003 Act and three people under section 4 of the 2004 Act for trafficking for forced marriage
4 httpwwwnationalcrimeagencygovukpublications399-nca-strategic-assessment-the-nature-and-scale-of-
human-trafficking-in-2013file 5 httpwwwlegislationgovukasp20037
6 httpwwwlegislationgovukukpga200419
7 httpwwwlegislationgovukasp201013
25
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
The average custodial sentence length for those convicted of trafficking offences was 847 days
(just under two years and four months) as well as any confiscation order imposed
11 Although the number of convictions for trafficking offences has been small police and
the Crown Office and Procurator Fiscal Service (COPFS) have confirmed that even though it is
not possible to always prove the trafficking offence where a credible suspicion exists people
suspected of involvement with trafficking can and often are prosecuted and convicted for other
crimes such as crimes associated with prostitution forced marriage immigration offences and
drugs offences etc
12 Police Scotland has established a dedicated National Human Trafficking Unit to enhance
the police response to human trafficking through awareness raising intelligence gathering
training and providing divisions with advice and specialist knowledge The COPFS has
appointed dedicated expert fiscals to prosecute human trafficking offences
Support for victims of trafficking
13 The Scottish Government currently allocates direct grant funding to non-government
organisations to provide and facilitate immediate support and assistance to the adult victims of
human trafficking This support can include immediate safe accommodation psychological
support assistance in accessing medical treatment material assistance interpretation and
translation and assistance either with repatriation or securing longer-term access to mainstream
services and support such as welfare benefits and housing The provision of support and
assistance is not conditional on the potential victim being willing to participate in the criminal
justice process Under the NRM victims of trafficking are guaranteed ―a recovery and reflection
period to recover from their experience escape the influence of those alleged to have trafficked
or exploited them and consider whether to engage with authorities The Council of Europe
Convention on Action Against Trafficking in Human Beings8 provides for a reflection period of
at least 30 days for all trafficked victims when there are reasonable grounds to believe that the
person concerned is a victim The current minimum recovery and reflection period in Scotland
and the rest of the UK is 45 days
14 In 2013-14 total grant funding of pound723000 was provided by the Scottish Government
towards the costs of ensuring immediate support and assistance for the adult victims and
potential victims of trafficking in Scotland This funding was provided through two non-
government organisationsmdash
the TARA Service which works with women aged 18 years and over across
Scotland where there are concerns that they have been trafficked for commercial
sexual exploitation and
Migrant Help a UK-wide organisation providing support and advice services to
migrants including new asylum claimants refugees EU nationals etc
15 Support for the child victims of trafficking is co-ordinated by local authorities as part of
their child protection arrangements and in line with the policy intention that children remain
8 httpwwwcoeinttdghlmonitoringtraffickingdocsconvntnCETS197_enasp
26
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
children first and that their needs should be treated accordingly The Scottish Government has
produced a toolkit for agencies working with children and young people to ensure that staff are
able to identify trafficked children and make appropriate referrals so that victims can receive
protection and support The toolkit is designed to be used in conjunction with National Child
Protection Guidance9 which was first published in 2010 and refreshed in 2014 and other
relevant national and international guidance Information about current expenditure on child
victims of trafficking is not recorded separately from information about wider expenditure on
child protection services
Lord Advocate guidance on prosecution policy
16 In his letter of 21 January 2013 to the Scottish Parliament European and External
Relations Committee10
the Lord Advocate set out the current arrangements for fiscals
considering the prosecution of a confirmed or potential victim of human trafficking where it is
believed or claimed that the crime was committed as a direct consequence of the personrsquos
trafficked status The letter set out the basis for the current Lord Advocatersquos guidance to
prosecutors including the presumption against the prosecution of a credible trafficking victim
for crimes that arise as a consequence of the victimrsquos trafficked status
Human trafficking strategic approach awareness raising and training
17 The first Scottish Human Trafficking Summit was hosted by the Cabinet Secretary for
Justice in October 2012 The summit brought together key law enforcement public private and
third sector organisations with an interest in human trafficking Following the summit a number
of strategic collaborative actions were agreed and progressed including with reference to
awareness raising and training for frontline staff data collection and analysis identification care
and support for both child and adult victims of trafficking and enhancing enforcement
18 One specific workstream related to awareness raising and training of front-line staff
likely to come into contact with trafficking victims or potential instances of trafficking
Following the summit Police Scotland with support from the Scottish Government and others
prepared published and circulated widely an awareness raising leaflet ndash Reading the Signs11
ndash to
assist police officers and staff in other front line posts in identifying the signs of potential
trafficking The Scottish Government also participated with the UK Government in a UK-wide
public awareness raising campaign about modern slavery and trafficking
19 In addition to general awareness raising specific training material was prepared for key
front-line staff For example all police officers were required to undertake an e-learning course
on human trafficking A special leaflet for health workers was prepared and circulated by NHS
Health Scotland An e-learning module for health workers about their role in identifying and
9 httpwwwscotlandgovukPublications2014053052
10httpwwwscottishparliamentukS3_EuropeanandExternalRelationsCommitteeGeneral20DocumentsLetterfro
mTheLordAdvocatepdf 11
httpwwwscotlandpoliceukassetspdf174967human-traffickingview=Standard
27
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
responding to victims of trafficking was made available through the National Gender Based
Violence and Health Programme12
IMPACT OF SPECIFIC PROVISIONS
PART 1 - OFFENCES
Single trafficking offence
20 The Bill establishes a new single offence of human trafficking for all types of
exploitation for both adults and children replacing existing separate criminal offences (see
paragraph 9 above) As noted above to date there have been relatively small numbers of
prosecutions under existing trafficking offences
21 The maximum penalty for conviction on indictment for the single trafficking offence will
be life imprisonment compared with a maximum of 14 years for the current separate offences
Although it will be for the court to decide how to sentence people convicted under the new single
offence in any given case it is likely that the availability of a higher maximum sentence will
have cost implications for the Scottish Prison Service (SPS)
Revised slavery servitude and forced labour offence
22 The Bill will also repeal and replace the existing exploitation offence within section 47 of
the 2010 Act which criminalises holding someone in slavery or servitude or requiring them to
perform compulsory or forced labour The offence will be revised and strengthened to allow the
court to consider in assessing whether a person has been a victim of an offence the victimrsquos
characteristics such as age physical or mental illness disability or where relevant family
relationships The maximum penalty for the offence will be increased from 14 years for the
current offence to life imprisonment for a conviction on indictment
Statutory aggravators
23 The Bill makes provision for statutory aggravators which apply in cases where an
accused person commits an offence connected with human trafficking and for when the offence
is committed in connection with the accusedrsquos position as a public official The court must take
the aggravation into account in determining the appropriate sentence if it is proved that the
offence is aggravated in this way The statutory aggravator is not anticipated to have any
substantial financial implications for public private or third sector bodies or for individuals
Costs on the Scottish Administration
24 Consolidating and clarifying the existing criminal law on trafficking and exploitation
alongside other measures arising from the Bill and the trafficking and exploitation strategy
including training and awareness raising and support for victims should increase the potential
for successful investigations prosecutions and convictions of human trafficking and exploitation
offences There have been six successful prosecutions for a specific trafficking offence to date in
Scotland with an average custodial sentence length of two years and four months against a
12
httpwwwgbvscotnhsuk
28
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
maximum possible sentence of 14 years The maximum number of prosecutions in any one year
was four individuals in two separate cases
25 Police and prosecutors already have in place specialist resources for investigating and
prosecuting human trafficking and exploitation offences and these provisions will not add to
these costs Law enforcement agencies have confirmed that whilst the number of prosecutions
for specific trafficking offences has been low where victims are identified but are unwilling to
testify individuals suspected of trafficking and exploitation will be prosecuted in court for other
related offences The Lord Advocate has identified that ―If we donrsquot have the evidence [to
prosecute for a specific human trafficking offence] we prosecute for fraud ID theft or asylum
and immigration offences13
26 The Scottish Government does not anticipate therefore significant additional cost
implications for law enforcement agencies or courts as cases will often proceed with a
trafficking offence alongside or in place of other related offences For the same reason the
Scottish Government does not anticipate significant additional cost on the Scottish Legal Aid
Board (SLAB) However if it is assumed that the number of successful trials proceeding in any
single year doubles from two to four there would be some additional costs on the COPFS the
Scottish Court Service (SCS) and SLAB based on the average unit costs for cases proceeded
either through Sheriff Court Solemn procedure or through the High Court These estimated costs
depending on whether cases are proceeded through the High Court or Sheriff Court solemn
procedure are illustrated in the table below
Table 3 Estimated unit costs of additional trial procedures through either High Court or
Sheriff Court solemn procedure (pound000)
Average prosecution
costs per procedure
(COPFS)
Average court costs
per procedure (SCS)
Average legal aid
costs per procedure
(SLAB)
Sheriff Court solemn
procedure (pound000) pound49 pound19 pound16
High Court (pound000) pound556 pound90 pound135
Estimated average
costs of 2 additional
trial procedures 4
accused per annum
(pound000)
pound99-pound1112 pound38-pound180 pound64-pound540
Source costs of the Criminal Justice System in Scotland Dataset (2013)14
27 There will also be costs to the SPS both through any increase in the number of successful
convictions for trafficking and exploitation offences and an anticipated increase in the average
length of custodial sentence for these crimes It is not possible to know for certain the total
13
httpwwwdailyrecordcouknewsscottish-newsonly-three-successful-prosecutions-brought-4457684 14httpwwwscotlandgovukTopicsStatisticsBrowseCrimeJusticePublicationscostcrimjustsc
otcostcrimjustdatasethttpwwwscotlandgovukTopicsStatisticsBrowseCrimeJusticePublicationscostcrimj
ustscotcostcrimjustdataset
29
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
number of future convictions or what sentencing decisions might be taken by courts in individual
cases
28 The table below illustrates the potential cost implications of either maintaining or
increasing the current maximum number of convictions in any individual year from four to eight
convictions For the purpose of the calculation it is assumed that the average custodial sentence
length for trafficking and exploitation offences will increase from two years and four months
(classified as a short-term sentence) to over four years (classified as a long-term sentence) as
increasing the maximum sentence to life imprisonment is anticipated to increase the average
sentence for a trafficking offence The estimated average annual cost of a prison place based on
SPS figures is pound42500 Taking account of the current early release arrangements for long-term
prisoners and the overlapping of individual sentences would result in an estimated increase of 8
to 21 total prison places each year after four years ndash ie with an additional four people receiving
custodial sentences each year and released by the Parole Board at the halfway point of their
sentence or automatically at the two-thirds point The total costs to the SPS will be within a
range of pound340000 to pound890000 These costs will fit within the overall budget costs to the SPS
As at 17 October 2014 there were 7731 people in custody in Scotland An additional 21 places
accounts for 03 of the total prison population
Table 4 Estimated range of costs to the Scottish Prison Service from increasing the
number and average length of successful prosecutions for trafficking offences
Year 1 Year 2 Year 3 Year 4
Additional Prison places 0-4 4-12 8-17 8-21
Additional Cost (pound000) pound0-pound170 pound170- pound510 pound340-pound720 pound340-pound890
Table 5 Estimated range of combined costs for trial procedures and prison places
Year 1 Year 2 Year 3 Year 4
Additional Cost (pound000) pound20-pound353 pound190- pound693 pound360-pound900 pound360-pound1073
Costs on other bodies individuals and businesses
29 There will be no new costs falling on other bodies individuals and businesses as a
consequence of these sections but see the section below with reference to victim support
Costs on local authorities
30 There will be no new costs falling on local authorities as a consequence of these specific
sections
PART 2 - PROTECTION OF VICTIMS
Duty on the Lord Advocate to publish guidance about the prosecution of credible trafficking and
exploitation victims who have committed offences
Costs on the Scottish Administration
31 As noted above the Lord Advocate already prepares and publishes guidance to fiscals
about the prosecution of credible victims of human trafficking for crimes committed as a direct
30
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
consequence of their trafficking status The requirement to publish such guidance would in
future be statutory However there will be no new costs on the Scottish Government or the
COPFS as a consequence of placing the requirement for the Lord Advocate to issue this
guidance on a statutory basis
Costs on other bodies individuals and businesses
32 There will be no new costs falling on other bodies individuals and businesses as a
consequence of these sections
Costs on local authorities
33 There will be no new costs falling on local authorities as a consequence of these sections
Ensure the rights of victims to access and support
34 The Bill will place a statutory duty on the Scottish Ministers to secure the provision of
relevant immediate support and recovery services for adult victims of trafficking subject to an
assessment of need The Bill will specify those victims or potential victims entitled to support
and the minimum time periods during which such services should be provided Specifically the
Bill will require Ministers to provide support and assistance based on each individualrsquos assessed
needs during the recovery and reflection period (currently 45 days) during which the
individualrsquos trafficking status is determined The Bill specifies minimum support and assistance
that should be considered as part of the assessment including access to housing treatment
interpretation services etc The Scottish Ministers have the flexibility to provide support and
assistance outwith the specified reflection and recovery period where this is considered
appropriate
35 As noted above the Scottish Ministers already provide grant funding totalling pound723000
to third sector organisations to assist identified adult potential victims of trafficking Provision of
support to adult victims will be placed on a statutory basis The number of adult potential victims
of trafficking referred through the NRM during 2013 was 77 although not all of these will have
requested assistance or received the full range of support services It is assumed that other
actions arising from the Bill including the single offence and publication of the trafficking and
exploitation strategy will result over time in an increase in identified victims and requests for
assistance and support
Costs on the Scottish Administration
36 The Scottish Government anticipates that improved awareness raising and training of
front-line staff will result in an increase in the number of victims identified over time It is not
possible to know how quickly this improvement will be achieved However between 2012 and
2013 the number of potential identified victims across the UK identified through the NCA
strategic assessment and NRM increased by 22 and 41 respectively Given the need for
awareness raising and training to impact the Scottish Government does not anticipate a similar
scale of increase in the immediate term but the Government considers it reasonable to anticipate
a possible increase of between 10 and 20 per annum in the overall number of requests for
assistance and support each year over the next four years Assuming a similar mix of needs as
31
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
current victims the increased costs to the Scottish Government on top of existing funding
would range between pound290000 to pound580000 per annum by year four
Table 6 Estimated range of costs increases for victim support and assistance (pound000)
Year 1 Year 2 Year 3 Year 4
Additional Cost (pound000) pound0-pound140 pound140-pound280 pound220-pound430 pound290-pound580
Costs on other bodies individuals and businesses
37 There will be no additional costs on other public bodies individuals or businesses
associated with these specific provisions There will be no direct additional costs falling on third
sector organisations as a consequence of the specific provisions It is likely however that all or
part of the additional funding identified above will be directed by the Scottish Government
through relevant third sector organisations with the expertise to provide immediate support and
protection to victims
Costs on local authorities
38 The Bill creates no new legislative requirements for the delivery of childrenrsquos services
recognising that this already exists It is therefore not anticipated that the Bill will result in any
quantifiable additional costs on local authorities or other public bodies as a result of support for
child victims Child victims of trafficking are supported as part of the Getting It Right for Every
Child (GIRFEC) approach any child whether identified as trafficked or not will be assessed on
the basis of its needs It is anticipated that as a consequence of the strategy (for which the Bill
provides) that more children may be identified as trafficked It is noted however that various
reports including most recently the UK Governmentrsquos NRM Review Report15
have found that
children who are already receiving support from relevant authorities in the UK are often not
identified as trafficked victims because of lack of awareness of the referral process It may be
that actions arising from the development of the strategy and dialogue with stakeholders will
give rise to additional activity or costs with reference to child victims of trafficking but these are
not known and cannot be estimated at this time
PART 3 - CONFISCATION OF PROPERTY
39 The Bill will provide police with powers to detain the property such as cars boats etc of
a person arrested for a trafficking offence This power will be exercised at the time of arrest and
is not expected to impose any additional costs on the police or others
Costs on the Scottish Administration
40 There will be no additional costs on the Scottish Government as a result of these
provisions Individuals can apply to the court to have vehicles ships or aircraft released from
detention This will be considered as part of the overall case and will not add to the costs to the
criminal justice system
15
httpsnrmhomeofficegovuk
32
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
Costs on other bodies individuals and businesses
41 There will be no additional costs on other public bodies individuals or businesses
including Police Scotland as a result of these specific provisions
Costs on local authorities
42 There will be no additional costs on local authorities as a result of these specific
provisions
PART 4 - TRAFFICKING AND EXPLOITATION PREVENTION AND RISK ORDERS
Introduce new measures to disrupt and prevent trafficking and exploitation
43 The Bill will introduce two new civil orders and associated interim orders to assist in
preventing trafficking and exploitation Trafficking and Exploitation Prevention Orders (TEPOs)
and Trafficking and Exploitation Risk Orders (TEROs) Where an individual has been convicted
of a trafficking or exploitation offence or an offence with a statutory trafficking aggravator a
TEPO may be imposed by a court where there is a risk that that individual may commit a further
human trafficking offence and it is necessary to make the order to protect people from the
physical or psychological harm which might occur if such an offence were committed The
TEPO will prevent the individual from engaging in activities described in the order Where a
person has not been convicted of a trafficking or exploitation offence but a court considers that
the person presents a significant risk of harm to others through the individual committing a
trafficking or exploitation offence the court can impose a TERO restricting specific activities or
imposing requirements These orders will be civil but breach of an order will constitute a
criminal offence with a maximum penalty of five years in prison available to the court
44 The Bill will categorise the trafficking and exploitation offences as lifestyle offences in
order to automatically trigger provisions within the Proceeds of Crime Act 2002 (―the 2002
Act) The definition of an offence as a ―lifestyle offence allows for proceedings under the
2002 Act to confiscate assets or monies from the individual convicted of the offence
Costs on the Scottish Administration
45 The purpose of TEPOs and TEROs is to prevent criminal activity associated with
trafficking and exploitation from arising There will be some cost implications for law
enforcement organisations which will need to monitor the terms of any order imposed by the
courts However these will be offset by the savings made from being able to intervene at an
early stage of criminality if an order has been breached For the equivalent civil orders within the
UK Modern Slavery Bill the UK Government has estimated potential net savings of between
pound130000 and pound1090000 per annum The Scottish Government has not incorporated any
savings for the purpose of Scottish legislation but expects the costs of implementing TEPOs and
TEROs and detention powers to be at least cost neutral for the Scottish Administration and other
public bodies
33
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
46 The Bill will give courts powers to impose a TEPO at the time of sentencing There will
be no immediate additional costs for the courts or COPFS associated with TEPOs imposed as
part of sentencing The Chief Constable of Police Scotland will also be able to apply to the court
for a TEPO to be imposed on a relevant offender previously convicted of a trafficking offence
There will be costs to Police Scotland in making the application and to the SCS and to SLAB in
considering the application As there have been only six previous convictions for trafficking
offences in Scotland the Scottish Government expects the number of applications for TEPOs for
previous convictions to be small one-off and will not add to the overall costs of the criminal
justice system The Chief Constable of Police Scotland can also apply to the court for a TERO
against an individual where it is considered that that individual is likely to commit a trafficking
offence
47 Looking at the equivalent costs for similar civil orders eg Sexual Offences Prevention
Orders the total costs to the SCS the COPFS and SLAB of applying for a TERO or post-
sentencing TEPO are estimated at between pound1000 and pound6000 per order It is not possible to
know how many TEPOs or TEROs might be applied for but assuming a number half the level of
the estimated maximum number of potential convictions for trafficking offences each year (four
to eight) would give estimated costs of between pound2000 (2 x pound1000) and pound24000 (4 x pound6000)
per annum
48 There will be costs to Police Scotland in monitoring TEPOs and TEROs whether
imposed at the time of sentence or by application but this will sit alongside Police Scotlandrsquos
existing crime prevention and investigative responsibilities and is not expected to add to
manpower costs
49 In addition to the costs of imposing and monitoring TEPOs and TEROs there will be
costs associated with prosecuting a breach of a TEPO or TERO Analysis in England and Wales
indicates that breaches of equivalent Serious Crime Prevention Orders are relatively low
Assuming one breach per annum the total combined costs to the COPFS the SCS and SLAB
would be between pound8400 and pound78100 per annum (see the combined costs for either sheriff
court or High Court procedures set out in Table 3 above) Assuming a maximum sentence of
five years the costs to the SPS for additional prison places would be between pound85000 and
pound127500 per annum (ie the pound42500 average costs of a prison place times either two or three
places depending on whether offenders are released early at the halfway or two-thirds point of
their sentence)
50 It is important to remember however that the purpose of TEPOs and TEROs is to
prevent further trafficking and exploitation offences occurring A TEPO or TERO will only be
imposed where a court considers that there is a credible risk of an individual committing such a
crime Any costs associated with the imposition and breach of TEPOs and TEROs needs to be
offset against the potential costs of prosecutions If each TEPO or TERO prevents the costs of a
conviction for an offence as set out in Part 1 above the costs to the Scottish Administration
would be at least cost neutral in terms of saved court and prison places expenditure
34
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
Costs on other bodies individuals and businesses
51 There will be no costs on other bodies businesses or other individuals as a consequence
of these sections
Costs on local authorities
52 There will be no new costs on local authorities as a consequence of these sections
PART 5 - STRATEGY AND REPORTING
Ensure a strategic cross-agency approach to tackling trafficking
53 The Bill places a duty on the Scottish Ministers to prepare publish and regularly review
and update a trafficking and exploitation strategy to assist in ensuring a co-ordinated and
strategic approach to this issue The provisions place a duty on Ministers to consult with such
organisations and individuals as they consider to have a relevant interest in the issues of human
trafficking and exploitation The Bill places a duty on relevant public bodies to be named in
regulations to assist in the preparation and review of the strategy
54 The Bill will place a duty on relevant public authorities to provide anonymised data about
potential human trafficking and exploitation victims to Police Scotland
Costs on the Scottish Administration
55 Activity arising from these provisions within the Bill will build on the activity and
current resources already committed to this area of work
56 Based on similar activities the estimated additional costs to the Scottish Ministers of
preparing and reviewing a trafficking and exploitation strategy will be approximately pound25000
every three years Alongside the preparation and publication of the strategy the Scottish
Ministers would also propose to support additional awareness raising and training activity to
build on the existing awareness raising and training activity already undertaken by relevant
organisations including the NHS Police Scotland and COPFS Consideration would be given to
how best to co-ordinate these resources alongside existing expenditure and activity For the
purposes of the Financial Memorandum and based on current activity additional costs on top of
existing activity are estimated at approximately pound100000 to pound250000 per annum over the first
four years of the Bill This is based on the best estimated costs of preparing and publishing
publicity and guidance material averaged over a number of years The exact costs will depend
on decisions taken in dialogue with stakeholders as part of the preparation of the strategy
57 The Scottish Government anticipates that the costs to relevant public authorities of
providing anonymised data about potential human trafficking victims to Police Scotland will be
marginal Costs to Police Scotland of collating this data will form part of their existing
intelligence gathering activity
35
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
Costs on other bodies individuals and businesses
58 There will be some costs on other bodies individuals and businesses in engaging with the
Scottish Ministers in the preparation and publication of the Strategy For business and
individuals this will be voluntary depending on their willingness to engage For public bodies
their level of engagement will depend on the relevance of the issue of trafficking and
exploitation to their work and their potential contribution to combating this behaviour Any
additional costs are expected to fit within or sit alongside their existing responsibilities for
example with reference to promoting and ensuring equalities and the application of human
rights obligations
Costs on local authorities
59 There will be costs on local authorities associated with engaging in the preparation and
review of the trafficking and exploitation strategy and in awareness raising and training of front-
line staff The additional costs should be marginal on top of the existing guidance and activity
already in place with reference to the identification and support of potential child victims of
trafficking The aim will be to minimise costs for other front-line local authority staff by
adapting the general awareness raising and training materials described above
SUMMARY
60 The table below provides a summary of the costs of each element of the Bill as described
above
Table 7 Summary table of costs for each aspect of the Bill (pound000)
Year 1 Year 2 Year 3 Year 4
Clarifying amp
Strengthening the
Criminal Law ndash Para 28 pound20-pound353 pound190- pound693 pound360-pound900 pound360-pound1073
Ensure the rights of
victims to access and
support - Para 36 pound70-pound140 pound140-pound280 pound220-pound430 pound290-pound580
Introduce new measures to
disrupt and prevent
trafficking pound016
pound0 pound0 pound0
Ensure a strategic cross
agency approach to
tackling trafficking ndash Para
56 pound125-pound275 pound100-pound250 pound100-pound250 pound125-pound275
TOTAL pound215-pound768 pound430-pound1223 pound680-pound1580 pound775-pound1928
16
The Scottish Government considers that the overall costs are at least cost neutral ndash see paragraphs 45 to 50
36
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December
SCOTTISH GOVERNMENT STATEMENT ON LEGISLATIVE
COMPETENCE
On 11 December 2014 the Cabinet Secretary for Justice (Michael Matheson MSP) made the
following statement
―In my view the provisions of the Human Trafficking and Exploitation (Scotland) Bill
would be within the legislative competence of the Scottish Parliament
mdashmdashmdashmdashmdashmdashmdashmdashmdashmdash
PRESIDING OFFICERrsquoS STATEMENT ON LEGISLATIVE
COMPETENCE
On 11 December 2014 the Presiding Officer (Rt Hon Tricia Marwick MSP) made the following
statement
―In my view the provisions of the Human Trafficking and Exploitation (Scotland) Bill
would be within the legislative competence of the Scottish Parliament
37
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December
SP Bill 57ndashEN Session 4 (2014)
HUMAN TRAFFICKING AND EXPLOITATION
(SCOTLAND) BILL
EXPLANATORY NOTES
(AND OTHER ACCOMPANYING DOCUMENTS)
Parliamentary copyright Scottish Parliamentary Corporate Body
Information on the Scottish Parliamentrsquos copyright policy can be found on the website -
wwwscottishparliamentuk
Produced and published in Scotland on behalf of the Scottish Parliamentary Corporate Body by APS
Group Scotland
ISBN 978-1-78534-569-2
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
an offence under section 1 or section 4 This duty would not affect any other general right to
report information relating to crime
138 Subsection (2) requires that a notification relating to an adult is anonymised and does not
include any information that identifies the adult or enables the adult to be identified unless the
adult consents to that data being provided
139 Subsection (3) provides that the Scottish Ministers may by regulations specify the
Scottish public authorities who are to be subject to this duty and may make provision about the
information to be included in the notification The regulations will be subject to the negative
procedure
PART 6 ndash FINAL PROVISIONS
Section 35 Offences by bodies corporate etc
140 Section 35 provides that where an offence under the Bill was committed by a body
corporate or a Scottish partnership or other unincorporated association and it is proved that the
offence was committed with the consent or connivance of or was attributable to any neglect on
the part of a relevant individual or someone purporting to be acting in the capacity of a relevant
individual that individual as well as the body corporate partnership or unincorporated
association commits the offence and is liable to be proceeded against and punished accordingly
141 Subsection (2) defines what is meant by a ―relevant individual for the purpose of this
section
Section 36 Interpretation
142 Section 36 defines certain terms for the purposes of the Bill for example the definition
of ―travel
Section 37 Regulations
143 The Scottish Ministers are given various powers under this Bill to make regulations
Section 37 provides for the parliamentary procedure which is to be applicable in relation to each
of those powers
Section 38 Ancillary provision
144 Section 38 provides that the Scottish Ministers may make regulations containing such
incidental supplementary consequential transitional transitory or saving provision as they
consider necessary or expedient for the purposes of or in connection with the provisions of the
Bill
21
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
Section 39 Minor and consequential amendments
145 Section 39 introduces the schedule which makes minor amendments and amendments
consequential on the provisions of the Bill Given their replacement in Part 1 of the Bill the
schedule repeals the current offences in relation to human trafficking (section 22 of the 2003 Act
and section 4 of the 2004 Act) and slavery servitude and forced or compulsory labour (section
47 of the 2010 Act)
Section 40 Crown application
146 Section 40(1) provides that none of the provisions made by or under the Act are capable
of making the Crown criminally liable In accordance with subsection (2) enforcement of
offences against the Crown is to be done by the Scottish Ministers or any other public body or
office-holder with responsibility for enforcing the provision applying to the Court of Session for
a civil declarator of non-compliance This provision does not apply to persons in the public
service of the Crown
Section 41 Commencement
147 Section 41 provides that sections 36 37 38 40 41 and 42 of the Bill come into force on
the day after Royal Assent All other provisions are to come into force on a day appointed by
regulations made by the Scottish Ministers
22
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
FINANCIAL MEMORANDUM
INTRODUCTION
1 This document relates to the Human Trafficking and Exploitation (Scotland) Bill (―the
Bill) introduced in the Scottish Parliament on 11 December 2014 It has been prepared by the
Scottish Government to satisfy Rule 932 of the Parliamentrsquos Standing Orders It does not form
part of the Bill and has not been endorsed by the Parliament
2 The purpose of the Bill is to consolidate and strengthen the existing criminal law against
human trafficking and exploitation and enhance the status and support provided to victims Bill
provisions are in the following Partsmdash
Part 1 (Offences) includes provision on the creation of a single offence of human trafficking
for all types of exploitation of both adults and children establishes statutory aggravators of
human trafficking for use with other crimes and reframes the current standalone offence of
slavery servitude and forced or compulsory labour
Part 2 (Protection of victims) includes provision on prosecutorial guidelines for the
prosecution of victims and provision about the support and assistance to which adult victims
are entitled
Part 3 (Confiscation of property) includes provision on detention and forfeiture of property
and proceeds of crime
Part 4 (Trafficking and exploitation prevention and risk orders) includes provision on
two new preventive orders the trafficking and exploitation prevention order and the
trafficking and exploitation risk order
Part 5 (Strategy and reporting) includes provision on the trafficking and exploitation
strategy and the duty on specified Scottish public authorities to notify and provide
information about victims
Part 6 contains general and ancillary provisions
3 This Financial Memorandum considers the financial implications of each of the elements
of the Bill where relevant
BACKGROUND
4 Before considering the financial implications associated with the specific provisions
within the Bill it is important to consider both the current estimated extent of human trafficking
in Scotland and existing activity by public bodies and others in response to this issue
23
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
Extent of human trafficking in Scotland
5 Human trafficking is by its nature a hidden crime The National Referral Mechanism
(NRM) is the process set up by the UK Government to identify and support victims of trafficking
in the UK The NRM is also the mechanism by which the UK Human Trafficking Centre
collects data about potential victims of trafficking Information about suspected child and adult
victims of human trafficking is referred by relevant ―first responder organisations such as the
police and third sector bodies for example Migrant Help and the Trafficking Awareness Raising
Alliance (TARA) Referrals relate to victims trafficked from outside and within the UK The
table below summarises the most recent available information on NRM referrals from first
responder organisations in Scotland
Table 1 Recent referrals from first responders in Scotland of potential child and adult
human trafficking victims to the National Referral Mechanism
2012 2013
Adults 67 77
Children 29 22
Total 96 99
of all UK Referrals 8 6
Source National Crime Agency National Referral Mechanism Statistics 2012 and 20131
6 Various reports confirm that the number of victims referred through the NRM is likely to
be a significant underestimate of the actual number of potential victims of trafficking For
example the Equality and Human Rights Commission Inquiry into Human Trafficking in
Scotland (2011) noted ―estimates of identified potential victims do not reflect what is likely to be
a much greater number of unidentified victims2
7 The UK National Crime Agency (NCA) Strategic Assessment of the Nature and Scale of
Human Trafficking in the UK3 aims to provide an indication of the nature and scale of human
trafficking beyond the number of referrals to the NRM The assessment is produced using
intelligence held by the NCA the NRM and intelligence information collected from agencies
such as Police Scotland the Home Office Gangmastersrsquo Licensing Authority and non-
government organisations The assessment removes information of potential victims referred to
the NRM who have received a negative ―reasonable grounds or ―conclusive decision (ie it
has been confirmed that they are not victims of trafficking) or duplicate information about
individuals (ie the same person has been referred more than once or by more than one agency)
to show a total number of ―unique potential victims of trafficking The NCA Assessment for
2013 indicated that there were significantly more unique potential victims of human trafficking
identified across the UK than the numbers referred to the NRM even excluding those that
received a negative decision and that the number of unique victims was increasing
1 httpwwwnationalcrimeagencygovukpublications399-nca-strategic-assessment-the-nature-and-scale-of-
human-trafficking-in-2013file 2httpwwwequalityhumanrightscomsitesdefaultfilesdocumentsScotlandHuman_Trafficking_in_Scotland_inq
uiry_into_human_trafficking_in_scotland-full-report_pdf_pdf 3 httpwwwnationalcrimeagencygovukpublications399-nca-strategic-assessment-the-nature-and-scale-of-
human-trafficking-in-2013file
24
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
Table 2 Comparison of recent UK referrals to the National Referral Mechanism and the
National Crime Agency Strategic Assessment of the Scale of Human Trafficking
2012 2013 Change
Referred to NRM 778 1095 +41
NCA Assessment No of
Unique Potential Victims
Identified
2255 2744 +22
Source National Crime Agency Strategic Assessment of the Nature and Scale of Human
Trafficking in the UK4
8 For Scotland the NCA Assessment for 2013 identified 55 unique potential victims of
human trafficking compared with 99 referrals to the NRM It is not known why in contrast to
the position in England and Wales the NCA Assessment for Scotland is lower than the NRM
referrals although it will exclude potential victims who received a negative conclusive decision
and duplicate referrals However these numbers must be treated with significant caution There
remains strong conviction amongst law enforcement bodies and victims organisations that there
are more victims of trafficking than are identified and that even once identified victims are
often unwilling to engage with authorities or identify themselves as having been trafficked For
the purpose of this Financial Memorandum the Scottish Government has accepted the NCA
assessment that there are likely to be between two and three times as many potential victims of
trafficking as are currently identified through the NRM This assessment is based on the Scottish
Governmentrsquos best understanding of the hidden nature of this crime and the known reluctance of
some victims to identify their trafficked status or to engage with public authorities
Criminal justice response to human trafficking and exploitation
9 There have been relatively few prosecutions and convictions for human trafficking
offences under existing criminal justice legislationmdash
The Criminal Justice (Scotland) Act 20035 (―the 2003 Act) provides for offences of
trafficking for the purposes of exploitation by way of prostitution
The Asylum and Immigration (Treatment of Claimants etc) Act 20046 (―the 2004
Act) provides for offences of trafficking for labour and other forms of exploitation
The Criminal Justice and Licensing (Scotland) Act 20107 (―the 2010 Act) amended
and extended the 2003 and 2004 Acts and created a standalone offence of holding
someone in slavery or servitude or requiring a person to perform forced or
compulsory labour
10 The first successful convictions for human trafficking in Scotland were in 2011 under
section 22 of the 2003 Act for trafficking for the purposes of prostitution During 2013 a total of
four people were convicted of human trafficking offences - one person under section 22 of the
2003 Act and three people under section 4 of the 2004 Act for trafficking for forced marriage
4 httpwwwnationalcrimeagencygovukpublications399-nca-strategic-assessment-the-nature-and-scale-of-
human-trafficking-in-2013file 5 httpwwwlegislationgovukasp20037
6 httpwwwlegislationgovukukpga200419
7 httpwwwlegislationgovukasp201013
25
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
The average custodial sentence length for those convicted of trafficking offences was 847 days
(just under two years and four months) as well as any confiscation order imposed
11 Although the number of convictions for trafficking offences has been small police and
the Crown Office and Procurator Fiscal Service (COPFS) have confirmed that even though it is
not possible to always prove the trafficking offence where a credible suspicion exists people
suspected of involvement with trafficking can and often are prosecuted and convicted for other
crimes such as crimes associated with prostitution forced marriage immigration offences and
drugs offences etc
12 Police Scotland has established a dedicated National Human Trafficking Unit to enhance
the police response to human trafficking through awareness raising intelligence gathering
training and providing divisions with advice and specialist knowledge The COPFS has
appointed dedicated expert fiscals to prosecute human trafficking offences
Support for victims of trafficking
13 The Scottish Government currently allocates direct grant funding to non-government
organisations to provide and facilitate immediate support and assistance to the adult victims of
human trafficking This support can include immediate safe accommodation psychological
support assistance in accessing medical treatment material assistance interpretation and
translation and assistance either with repatriation or securing longer-term access to mainstream
services and support such as welfare benefits and housing The provision of support and
assistance is not conditional on the potential victim being willing to participate in the criminal
justice process Under the NRM victims of trafficking are guaranteed ―a recovery and reflection
period to recover from their experience escape the influence of those alleged to have trafficked
or exploited them and consider whether to engage with authorities The Council of Europe
Convention on Action Against Trafficking in Human Beings8 provides for a reflection period of
at least 30 days for all trafficked victims when there are reasonable grounds to believe that the
person concerned is a victim The current minimum recovery and reflection period in Scotland
and the rest of the UK is 45 days
14 In 2013-14 total grant funding of pound723000 was provided by the Scottish Government
towards the costs of ensuring immediate support and assistance for the adult victims and
potential victims of trafficking in Scotland This funding was provided through two non-
government organisationsmdash
the TARA Service which works with women aged 18 years and over across
Scotland where there are concerns that they have been trafficked for commercial
sexual exploitation and
Migrant Help a UK-wide organisation providing support and advice services to
migrants including new asylum claimants refugees EU nationals etc
15 Support for the child victims of trafficking is co-ordinated by local authorities as part of
their child protection arrangements and in line with the policy intention that children remain
8 httpwwwcoeinttdghlmonitoringtraffickingdocsconvntnCETS197_enasp
26
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
children first and that their needs should be treated accordingly The Scottish Government has
produced a toolkit for agencies working with children and young people to ensure that staff are
able to identify trafficked children and make appropriate referrals so that victims can receive
protection and support The toolkit is designed to be used in conjunction with National Child
Protection Guidance9 which was first published in 2010 and refreshed in 2014 and other
relevant national and international guidance Information about current expenditure on child
victims of trafficking is not recorded separately from information about wider expenditure on
child protection services
Lord Advocate guidance on prosecution policy
16 In his letter of 21 January 2013 to the Scottish Parliament European and External
Relations Committee10
the Lord Advocate set out the current arrangements for fiscals
considering the prosecution of a confirmed or potential victim of human trafficking where it is
believed or claimed that the crime was committed as a direct consequence of the personrsquos
trafficked status The letter set out the basis for the current Lord Advocatersquos guidance to
prosecutors including the presumption against the prosecution of a credible trafficking victim
for crimes that arise as a consequence of the victimrsquos trafficked status
Human trafficking strategic approach awareness raising and training
17 The first Scottish Human Trafficking Summit was hosted by the Cabinet Secretary for
Justice in October 2012 The summit brought together key law enforcement public private and
third sector organisations with an interest in human trafficking Following the summit a number
of strategic collaborative actions were agreed and progressed including with reference to
awareness raising and training for frontline staff data collection and analysis identification care
and support for both child and adult victims of trafficking and enhancing enforcement
18 One specific workstream related to awareness raising and training of front-line staff
likely to come into contact with trafficking victims or potential instances of trafficking
Following the summit Police Scotland with support from the Scottish Government and others
prepared published and circulated widely an awareness raising leaflet ndash Reading the Signs11
ndash to
assist police officers and staff in other front line posts in identifying the signs of potential
trafficking The Scottish Government also participated with the UK Government in a UK-wide
public awareness raising campaign about modern slavery and trafficking
19 In addition to general awareness raising specific training material was prepared for key
front-line staff For example all police officers were required to undertake an e-learning course
on human trafficking A special leaflet for health workers was prepared and circulated by NHS
Health Scotland An e-learning module for health workers about their role in identifying and
9 httpwwwscotlandgovukPublications2014053052
10httpwwwscottishparliamentukS3_EuropeanandExternalRelationsCommitteeGeneral20DocumentsLetterfro
mTheLordAdvocatepdf 11
httpwwwscotlandpoliceukassetspdf174967human-traffickingview=Standard
27
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
responding to victims of trafficking was made available through the National Gender Based
Violence and Health Programme12
IMPACT OF SPECIFIC PROVISIONS
PART 1 - OFFENCES
Single trafficking offence
20 The Bill establishes a new single offence of human trafficking for all types of
exploitation for both adults and children replacing existing separate criminal offences (see
paragraph 9 above) As noted above to date there have been relatively small numbers of
prosecutions under existing trafficking offences
21 The maximum penalty for conviction on indictment for the single trafficking offence will
be life imprisonment compared with a maximum of 14 years for the current separate offences
Although it will be for the court to decide how to sentence people convicted under the new single
offence in any given case it is likely that the availability of a higher maximum sentence will
have cost implications for the Scottish Prison Service (SPS)
Revised slavery servitude and forced labour offence
22 The Bill will also repeal and replace the existing exploitation offence within section 47 of
the 2010 Act which criminalises holding someone in slavery or servitude or requiring them to
perform compulsory or forced labour The offence will be revised and strengthened to allow the
court to consider in assessing whether a person has been a victim of an offence the victimrsquos
characteristics such as age physical or mental illness disability or where relevant family
relationships The maximum penalty for the offence will be increased from 14 years for the
current offence to life imprisonment for a conviction on indictment
Statutory aggravators
23 The Bill makes provision for statutory aggravators which apply in cases where an
accused person commits an offence connected with human trafficking and for when the offence
is committed in connection with the accusedrsquos position as a public official The court must take
the aggravation into account in determining the appropriate sentence if it is proved that the
offence is aggravated in this way The statutory aggravator is not anticipated to have any
substantial financial implications for public private or third sector bodies or for individuals
Costs on the Scottish Administration
24 Consolidating and clarifying the existing criminal law on trafficking and exploitation
alongside other measures arising from the Bill and the trafficking and exploitation strategy
including training and awareness raising and support for victims should increase the potential
for successful investigations prosecutions and convictions of human trafficking and exploitation
offences There have been six successful prosecutions for a specific trafficking offence to date in
Scotland with an average custodial sentence length of two years and four months against a
12
httpwwwgbvscotnhsuk
28
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
maximum possible sentence of 14 years The maximum number of prosecutions in any one year
was four individuals in two separate cases
25 Police and prosecutors already have in place specialist resources for investigating and
prosecuting human trafficking and exploitation offences and these provisions will not add to
these costs Law enforcement agencies have confirmed that whilst the number of prosecutions
for specific trafficking offences has been low where victims are identified but are unwilling to
testify individuals suspected of trafficking and exploitation will be prosecuted in court for other
related offences The Lord Advocate has identified that ―If we donrsquot have the evidence [to
prosecute for a specific human trafficking offence] we prosecute for fraud ID theft or asylum
and immigration offences13
26 The Scottish Government does not anticipate therefore significant additional cost
implications for law enforcement agencies or courts as cases will often proceed with a
trafficking offence alongside or in place of other related offences For the same reason the
Scottish Government does not anticipate significant additional cost on the Scottish Legal Aid
Board (SLAB) However if it is assumed that the number of successful trials proceeding in any
single year doubles from two to four there would be some additional costs on the COPFS the
Scottish Court Service (SCS) and SLAB based on the average unit costs for cases proceeded
either through Sheriff Court Solemn procedure or through the High Court These estimated costs
depending on whether cases are proceeded through the High Court or Sheriff Court solemn
procedure are illustrated in the table below
Table 3 Estimated unit costs of additional trial procedures through either High Court or
Sheriff Court solemn procedure (pound000)
Average prosecution
costs per procedure
(COPFS)
Average court costs
per procedure (SCS)
Average legal aid
costs per procedure
(SLAB)
Sheriff Court solemn
procedure (pound000) pound49 pound19 pound16
High Court (pound000) pound556 pound90 pound135
Estimated average
costs of 2 additional
trial procedures 4
accused per annum
(pound000)
pound99-pound1112 pound38-pound180 pound64-pound540
Source costs of the Criminal Justice System in Scotland Dataset (2013)14
27 There will also be costs to the SPS both through any increase in the number of successful
convictions for trafficking and exploitation offences and an anticipated increase in the average
length of custodial sentence for these crimes It is not possible to know for certain the total
13
httpwwwdailyrecordcouknewsscottish-newsonly-three-successful-prosecutions-brought-4457684 14httpwwwscotlandgovukTopicsStatisticsBrowseCrimeJusticePublicationscostcrimjustsc
otcostcrimjustdatasethttpwwwscotlandgovukTopicsStatisticsBrowseCrimeJusticePublicationscostcrimj
ustscotcostcrimjustdataset
29
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
number of future convictions or what sentencing decisions might be taken by courts in individual
cases
28 The table below illustrates the potential cost implications of either maintaining or
increasing the current maximum number of convictions in any individual year from four to eight
convictions For the purpose of the calculation it is assumed that the average custodial sentence
length for trafficking and exploitation offences will increase from two years and four months
(classified as a short-term sentence) to over four years (classified as a long-term sentence) as
increasing the maximum sentence to life imprisonment is anticipated to increase the average
sentence for a trafficking offence The estimated average annual cost of a prison place based on
SPS figures is pound42500 Taking account of the current early release arrangements for long-term
prisoners and the overlapping of individual sentences would result in an estimated increase of 8
to 21 total prison places each year after four years ndash ie with an additional four people receiving
custodial sentences each year and released by the Parole Board at the halfway point of their
sentence or automatically at the two-thirds point The total costs to the SPS will be within a
range of pound340000 to pound890000 These costs will fit within the overall budget costs to the SPS
As at 17 October 2014 there were 7731 people in custody in Scotland An additional 21 places
accounts for 03 of the total prison population
Table 4 Estimated range of costs to the Scottish Prison Service from increasing the
number and average length of successful prosecutions for trafficking offences
Year 1 Year 2 Year 3 Year 4
Additional Prison places 0-4 4-12 8-17 8-21
Additional Cost (pound000) pound0-pound170 pound170- pound510 pound340-pound720 pound340-pound890
Table 5 Estimated range of combined costs for trial procedures and prison places
Year 1 Year 2 Year 3 Year 4
Additional Cost (pound000) pound20-pound353 pound190- pound693 pound360-pound900 pound360-pound1073
Costs on other bodies individuals and businesses
29 There will be no new costs falling on other bodies individuals and businesses as a
consequence of these sections but see the section below with reference to victim support
Costs on local authorities
30 There will be no new costs falling on local authorities as a consequence of these specific
sections
PART 2 - PROTECTION OF VICTIMS
Duty on the Lord Advocate to publish guidance about the prosecution of credible trafficking and
exploitation victims who have committed offences
Costs on the Scottish Administration
31 As noted above the Lord Advocate already prepares and publishes guidance to fiscals
about the prosecution of credible victims of human trafficking for crimes committed as a direct
30
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
consequence of their trafficking status The requirement to publish such guidance would in
future be statutory However there will be no new costs on the Scottish Government or the
COPFS as a consequence of placing the requirement for the Lord Advocate to issue this
guidance on a statutory basis
Costs on other bodies individuals and businesses
32 There will be no new costs falling on other bodies individuals and businesses as a
consequence of these sections
Costs on local authorities
33 There will be no new costs falling on local authorities as a consequence of these sections
Ensure the rights of victims to access and support
34 The Bill will place a statutory duty on the Scottish Ministers to secure the provision of
relevant immediate support and recovery services for adult victims of trafficking subject to an
assessment of need The Bill will specify those victims or potential victims entitled to support
and the minimum time periods during which such services should be provided Specifically the
Bill will require Ministers to provide support and assistance based on each individualrsquos assessed
needs during the recovery and reflection period (currently 45 days) during which the
individualrsquos trafficking status is determined The Bill specifies minimum support and assistance
that should be considered as part of the assessment including access to housing treatment
interpretation services etc The Scottish Ministers have the flexibility to provide support and
assistance outwith the specified reflection and recovery period where this is considered
appropriate
35 As noted above the Scottish Ministers already provide grant funding totalling pound723000
to third sector organisations to assist identified adult potential victims of trafficking Provision of
support to adult victims will be placed on a statutory basis The number of adult potential victims
of trafficking referred through the NRM during 2013 was 77 although not all of these will have
requested assistance or received the full range of support services It is assumed that other
actions arising from the Bill including the single offence and publication of the trafficking and
exploitation strategy will result over time in an increase in identified victims and requests for
assistance and support
Costs on the Scottish Administration
36 The Scottish Government anticipates that improved awareness raising and training of
front-line staff will result in an increase in the number of victims identified over time It is not
possible to know how quickly this improvement will be achieved However between 2012 and
2013 the number of potential identified victims across the UK identified through the NCA
strategic assessment and NRM increased by 22 and 41 respectively Given the need for
awareness raising and training to impact the Scottish Government does not anticipate a similar
scale of increase in the immediate term but the Government considers it reasonable to anticipate
a possible increase of between 10 and 20 per annum in the overall number of requests for
assistance and support each year over the next four years Assuming a similar mix of needs as
31
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
current victims the increased costs to the Scottish Government on top of existing funding
would range between pound290000 to pound580000 per annum by year four
Table 6 Estimated range of costs increases for victim support and assistance (pound000)
Year 1 Year 2 Year 3 Year 4
Additional Cost (pound000) pound0-pound140 pound140-pound280 pound220-pound430 pound290-pound580
Costs on other bodies individuals and businesses
37 There will be no additional costs on other public bodies individuals or businesses
associated with these specific provisions There will be no direct additional costs falling on third
sector organisations as a consequence of the specific provisions It is likely however that all or
part of the additional funding identified above will be directed by the Scottish Government
through relevant third sector organisations with the expertise to provide immediate support and
protection to victims
Costs on local authorities
38 The Bill creates no new legislative requirements for the delivery of childrenrsquos services
recognising that this already exists It is therefore not anticipated that the Bill will result in any
quantifiable additional costs on local authorities or other public bodies as a result of support for
child victims Child victims of trafficking are supported as part of the Getting It Right for Every
Child (GIRFEC) approach any child whether identified as trafficked or not will be assessed on
the basis of its needs It is anticipated that as a consequence of the strategy (for which the Bill
provides) that more children may be identified as trafficked It is noted however that various
reports including most recently the UK Governmentrsquos NRM Review Report15
have found that
children who are already receiving support from relevant authorities in the UK are often not
identified as trafficked victims because of lack of awareness of the referral process It may be
that actions arising from the development of the strategy and dialogue with stakeholders will
give rise to additional activity or costs with reference to child victims of trafficking but these are
not known and cannot be estimated at this time
PART 3 - CONFISCATION OF PROPERTY
39 The Bill will provide police with powers to detain the property such as cars boats etc of
a person arrested for a trafficking offence This power will be exercised at the time of arrest and
is not expected to impose any additional costs on the police or others
Costs on the Scottish Administration
40 There will be no additional costs on the Scottish Government as a result of these
provisions Individuals can apply to the court to have vehicles ships or aircraft released from
detention This will be considered as part of the overall case and will not add to the costs to the
criminal justice system
15
httpsnrmhomeofficegovuk
32
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
Costs on other bodies individuals and businesses
41 There will be no additional costs on other public bodies individuals or businesses
including Police Scotland as a result of these specific provisions
Costs on local authorities
42 There will be no additional costs on local authorities as a result of these specific
provisions
PART 4 - TRAFFICKING AND EXPLOITATION PREVENTION AND RISK ORDERS
Introduce new measures to disrupt and prevent trafficking and exploitation
43 The Bill will introduce two new civil orders and associated interim orders to assist in
preventing trafficking and exploitation Trafficking and Exploitation Prevention Orders (TEPOs)
and Trafficking and Exploitation Risk Orders (TEROs) Where an individual has been convicted
of a trafficking or exploitation offence or an offence with a statutory trafficking aggravator a
TEPO may be imposed by a court where there is a risk that that individual may commit a further
human trafficking offence and it is necessary to make the order to protect people from the
physical or psychological harm which might occur if such an offence were committed The
TEPO will prevent the individual from engaging in activities described in the order Where a
person has not been convicted of a trafficking or exploitation offence but a court considers that
the person presents a significant risk of harm to others through the individual committing a
trafficking or exploitation offence the court can impose a TERO restricting specific activities or
imposing requirements These orders will be civil but breach of an order will constitute a
criminal offence with a maximum penalty of five years in prison available to the court
44 The Bill will categorise the trafficking and exploitation offences as lifestyle offences in
order to automatically trigger provisions within the Proceeds of Crime Act 2002 (―the 2002
Act) The definition of an offence as a ―lifestyle offence allows for proceedings under the
2002 Act to confiscate assets or monies from the individual convicted of the offence
Costs on the Scottish Administration
45 The purpose of TEPOs and TEROs is to prevent criminal activity associated with
trafficking and exploitation from arising There will be some cost implications for law
enforcement organisations which will need to monitor the terms of any order imposed by the
courts However these will be offset by the savings made from being able to intervene at an
early stage of criminality if an order has been breached For the equivalent civil orders within the
UK Modern Slavery Bill the UK Government has estimated potential net savings of between
pound130000 and pound1090000 per annum The Scottish Government has not incorporated any
savings for the purpose of Scottish legislation but expects the costs of implementing TEPOs and
TEROs and detention powers to be at least cost neutral for the Scottish Administration and other
public bodies
33
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
46 The Bill will give courts powers to impose a TEPO at the time of sentencing There will
be no immediate additional costs for the courts or COPFS associated with TEPOs imposed as
part of sentencing The Chief Constable of Police Scotland will also be able to apply to the court
for a TEPO to be imposed on a relevant offender previously convicted of a trafficking offence
There will be costs to Police Scotland in making the application and to the SCS and to SLAB in
considering the application As there have been only six previous convictions for trafficking
offences in Scotland the Scottish Government expects the number of applications for TEPOs for
previous convictions to be small one-off and will not add to the overall costs of the criminal
justice system The Chief Constable of Police Scotland can also apply to the court for a TERO
against an individual where it is considered that that individual is likely to commit a trafficking
offence
47 Looking at the equivalent costs for similar civil orders eg Sexual Offences Prevention
Orders the total costs to the SCS the COPFS and SLAB of applying for a TERO or post-
sentencing TEPO are estimated at between pound1000 and pound6000 per order It is not possible to
know how many TEPOs or TEROs might be applied for but assuming a number half the level of
the estimated maximum number of potential convictions for trafficking offences each year (four
to eight) would give estimated costs of between pound2000 (2 x pound1000) and pound24000 (4 x pound6000)
per annum
48 There will be costs to Police Scotland in monitoring TEPOs and TEROs whether
imposed at the time of sentence or by application but this will sit alongside Police Scotlandrsquos
existing crime prevention and investigative responsibilities and is not expected to add to
manpower costs
49 In addition to the costs of imposing and monitoring TEPOs and TEROs there will be
costs associated with prosecuting a breach of a TEPO or TERO Analysis in England and Wales
indicates that breaches of equivalent Serious Crime Prevention Orders are relatively low
Assuming one breach per annum the total combined costs to the COPFS the SCS and SLAB
would be between pound8400 and pound78100 per annum (see the combined costs for either sheriff
court or High Court procedures set out in Table 3 above) Assuming a maximum sentence of
five years the costs to the SPS for additional prison places would be between pound85000 and
pound127500 per annum (ie the pound42500 average costs of a prison place times either two or three
places depending on whether offenders are released early at the halfway or two-thirds point of
their sentence)
50 It is important to remember however that the purpose of TEPOs and TEROs is to
prevent further trafficking and exploitation offences occurring A TEPO or TERO will only be
imposed where a court considers that there is a credible risk of an individual committing such a
crime Any costs associated with the imposition and breach of TEPOs and TEROs needs to be
offset against the potential costs of prosecutions If each TEPO or TERO prevents the costs of a
conviction for an offence as set out in Part 1 above the costs to the Scottish Administration
would be at least cost neutral in terms of saved court and prison places expenditure
34
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
Costs on other bodies individuals and businesses
51 There will be no costs on other bodies businesses or other individuals as a consequence
of these sections
Costs on local authorities
52 There will be no new costs on local authorities as a consequence of these sections
PART 5 - STRATEGY AND REPORTING
Ensure a strategic cross-agency approach to tackling trafficking
53 The Bill places a duty on the Scottish Ministers to prepare publish and regularly review
and update a trafficking and exploitation strategy to assist in ensuring a co-ordinated and
strategic approach to this issue The provisions place a duty on Ministers to consult with such
organisations and individuals as they consider to have a relevant interest in the issues of human
trafficking and exploitation The Bill places a duty on relevant public bodies to be named in
regulations to assist in the preparation and review of the strategy
54 The Bill will place a duty on relevant public authorities to provide anonymised data about
potential human trafficking and exploitation victims to Police Scotland
Costs on the Scottish Administration
55 Activity arising from these provisions within the Bill will build on the activity and
current resources already committed to this area of work
56 Based on similar activities the estimated additional costs to the Scottish Ministers of
preparing and reviewing a trafficking and exploitation strategy will be approximately pound25000
every three years Alongside the preparation and publication of the strategy the Scottish
Ministers would also propose to support additional awareness raising and training activity to
build on the existing awareness raising and training activity already undertaken by relevant
organisations including the NHS Police Scotland and COPFS Consideration would be given to
how best to co-ordinate these resources alongside existing expenditure and activity For the
purposes of the Financial Memorandum and based on current activity additional costs on top of
existing activity are estimated at approximately pound100000 to pound250000 per annum over the first
four years of the Bill This is based on the best estimated costs of preparing and publishing
publicity and guidance material averaged over a number of years The exact costs will depend
on decisions taken in dialogue with stakeholders as part of the preparation of the strategy
57 The Scottish Government anticipates that the costs to relevant public authorities of
providing anonymised data about potential human trafficking victims to Police Scotland will be
marginal Costs to Police Scotland of collating this data will form part of their existing
intelligence gathering activity
35
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
Costs on other bodies individuals and businesses
58 There will be some costs on other bodies individuals and businesses in engaging with the
Scottish Ministers in the preparation and publication of the Strategy For business and
individuals this will be voluntary depending on their willingness to engage For public bodies
their level of engagement will depend on the relevance of the issue of trafficking and
exploitation to their work and their potential contribution to combating this behaviour Any
additional costs are expected to fit within or sit alongside their existing responsibilities for
example with reference to promoting and ensuring equalities and the application of human
rights obligations
Costs on local authorities
59 There will be costs on local authorities associated with engaging in the preparation and
review of the trafficking and exploitation strategy and in awareness raising and training of front-
line staff The additional costs should be marginal on top of the existing guidance and activity
already in place with reference to the identification and support of potential child victims of
trafficking The aim will be to minimise costs for other front-line local authority staff by
adapting the general awareness raising and training materials described above
SUMMARY
60 The table below provides a summary of the costs of each element of the Bill as described
above
Table 7 Summary table of costs for each aspect of the Bill (pound000)
Year 1 Year 2 Year 3 Year 4
Clarifying amp
Strengthening the
Criminal Law ndash Para 28 pound20-pound353 pound190- pound693 pound360-pound900 pound360-pound1073
Ensure the rights of
victims to access and
support - Para 36 pound70-pound140 pound140-pound280 pound220-pound430 pound290-pound580
Introduce new measures to
disrupt and prevent
trafficking pound016
pound0 pound0 pound0
Ensure a strategic cross
agency approach to
tackling trafficking ndash Para
56 pound125-pound275 pound100-pound250 pound100-pound250 pound125-pound275
TOTAL pound215-pound768 pound430-pound1223 pound680-pound1580 pound775-pound1928
16
The Scottish Government considers that the overall costs are at least cost neutral ndash see paragraphs 45 to 50
36
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December
SCOTTISH GOVERNMENT STATEMENT ON LEGISLATIVE
COMPETENCE
On 11 December 2014 the Cabinet Secretary for Justice (Michael Matheson MSP) made the
following statement
―In my view the provisions of the Human Trafficking and Exploitation (Scotland) Bill
would be within the legislative competence of the Scottish Parliament
mdashmdashmdashmdashmdashmdashmdashmdashmdashmdash
PRESIDING OFFICERrsquoS STATEMENT ON LEGISLATIVE
COMPETENCE
On 11 December 2014 the Presiding Officer (Rt Hon Tricia Marwick MSP) made the following
statement
―In my view the provisions of the Human Trafficking and Exploitation (Scotland) Bill
would be within the legislative competence of the Scottish Parliament
37
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December
SP Bill 57ndashEN Session 4 (2014)
HUMAN TRAFFICKING AND EXPLOITATION
(SCOTLAND) BILL
EXPLANATORY NOTES
(AND OTHER ACCOMPANYING DOCUMENTS)
Parliamentary copyright Scottish Parliamentary Corporate Body
Information on the Scottish Parliamentrsquos copyright policy can be found on the website -
wwwscottishparliamentuk
Produced and published in Scotland on behalf of the Scottish Parliamentary Corporate Body by APS
Group Scotland
ISBN 978-1-78534-569-2
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
Section 39 Minor and consequential amendments
145 Section 39 introduces the schedule which makes minor amendments and amendments
consequential on the provisions of the Bill Given their replacement in Part 1 of the Bill the
schedule repeals the current offences in relation to human trafficking (section 22 of the 2003 Act
and section 4 of the 2004 Act) and slavery servitude and forced or compulsory labour (section
47 of the 2010 Act)
Section 40 Crown application
146 Section 40(1) provides that none of the provisions made by or under the Act are capable
of making the Crown criminally liable In accordance with subsection (2) enforcement of
offences against the Crown is to be done by the Scottish Ministers or any other public body or
office-holder with responsibility for enforcing the provision applying to the Court of Session for
a civil declarator of non-compliance This provision does not apply to persons in the public
service of the Crown
Section 41 Commencement
147 Section 41 provides that sections 36 37 38 40 41 and 42 of the Bill come into force on
the day after Royal Assent All other provisions are to come into force on a day appointed by
regulations made by the Scottish Ministers
22
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
FINANCIAL MEMORANDUM
INTRODUCTION
1 This document relates to the Human Trafficking and Exploitation (Scotland) Bill (―the
Bill) introduced in the Scottish Parliament on 11 December 2014 It has been prepared by the
Scottish Government to satisfy Rule 932 of the Parliamentrsquos Standing Orders It does not form
part of the Bill and has not been endorsed by the Parliament
2 The purpose of the Bill is to consolidate and strengthen the existing criminal law against
human trafficking and exploitation and enhance the status and support provided to victims Bill
provisions are in the following Partsmdash
Part 1 (Offences) includes provision on the creation of a single offence of human trafficking
for all types of exploitation of both adults and children establishes statutory aggravators of
human trafficking for use with other crimes and reframes the current standalone offence of
slavery servitude and forced or compulsory labour
Part 2 (Protection of victims) includes provision on prosecutorial guidelines for the
prosecution of victims and provision about the support and assistance to which adult victims
are entitled
Part 3 (Confiscation of property) includes provision on detention and forfeiture of property
and proceeds of crime
Part 4 (Trafficking and exploitation prevention and risk orders) includes provision on
two new preventive orders the trafficking and exploitation prevention order and the
trafficking and exploitation risk order
Part 5 (Strategy and reporting) includes provision on the trafficking and exploitation
strategy and the duty on specified Scottish public authorities to notify and provide
information about victims
Part 6 contains general and ancillary provisions
3 This Financial Memorandum considers the financial implications of each of the elements
of the Bill where relevant
BACKGROUND
4 Before considering the financial implications associated with the specific provisions
within the Bill it is important to consider both the current estimated extent of human trafficking
in Scotland and existing activity by public bodies and others in response to this issue
23
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
Extent of human trafficking in Scotland
5 Human trafficking is by its nature a hidden crime The National Referral Mechanism
(NRM) is the process set up by the UK Government to identify and support victims of trafficking
in the UK The NRM is also the mechanism by which the UK Human Trafficking Centre
collects data about potential victims of trafficking Information about suspected child and adult
victims of human trafficking is referred by relevant ―first responder organisations such as the
police and third sector bodies for example Migrant Help and the Trafficking Awareness Raising
Alliance (TARA) Referrals relate to victims trafficked from outside and within the UK The
table below summarises the most recent available information on NRM referrals from first
responder organisations in Scotland
Table 1 Recent referrals from first responders in Scotland of potential child and adult
human trafficking victims to the National Referral Mechanism
2012 2013
Adults 67 77
Children 29 22
Total 96 99
of all UK Referrals 8 6
Source National Crime Agency National Referral Mechanism Statistics 2012 and 20131
6 Various reports confirm that the number of victims referred through the NRM is likely to
be a significant underestimate of the actual number of potential victims of trafficking For
example the Equality and Human Rights Commission Inquiry into Human Trafficking in
Scotland (2011) noted ―estimates of identified potential victims do not reflect what is likely to be
a much greater number of unidentified victims2
7 The UK National Crime Agency (NCA) Strategic Assessment of the Nature and Scale of
Human Trafficking in the UK3 aims to provide an indication of the nature and scale of human
trafficking beyond the number of referrals to the NRM The assessment is produced using
intelligence held by the NCA the NRM and intelligence information collected from agencies
such as Police Scotland the Home Office Gangmastersrsquo Licensing Authority and non-
government organisations The assessment removes information of potential victims referred to
the NRM who have received a negative ―reasonable grounds or ―conclusive decision (ie it
has been confirmed that they are not victims of trafficking) or duplicate information about
individuals (ie the same person has been referred more than once or by more than one agency)
to show a total number of ―unique potential victims of trafficking The NCA Assessment for
2013 indicated that there were significantly more unique potential victims of human trafficking
identified across the UK than the numbers referred to the NRM even excluding those that
received a negative decision and that the number of unique victims was increasing
1 httpwwwnationalcrimeagencygovukpublications399-nca-strategic-assessment-the-nature-and-scale-of-
human-trafficking-in-2013file 2httpwwwequalityhumanrightscomsitesdefaultfilesdocumentsScotlandHuman_Trafficking_in_Scotland_inq
uiry_into_human_trafficking_in_scotland-full-report_pdf_pdf 3 httpwwwnationalcrimeagencygovukpublications399-nca-strategic-assessment-the-nature-and-scale-of-
human-trafficking-in-2013file
24
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
Table 2 Comparison of recent UK referrals to the National Referral Mechanism and the
National Crime Agency Strategic Assessment of the Scale of Human Trafficking
2012 2013 Change
Referred to NRM 778 1095 +41
NCA Assessment No of
Unique Potential Victims
Identified
2255 2744 +22
Source National Crime Agency Strategic Assessment of the Nature and Scale of Human
Trafficking in the UK4
8 For Scotland the NCA Assessment for 2013 identified 55 unique potential victims of
human trafficking compared with 99 referrals to the NRM It is not known why in contrast to
the position in England and Wales the NCA Assessment for Scotland is lower than the NRM
referrals although it will exclude potential victims who received a negative conclusive decision
and duplicate referrals However these numbers must be treated with significant caution There
remains strong conviction amongst law enforcement bodies and victims organisations that there
are more victims of trafficking than are identified and that even once identified victims are
often unwilling to engage with authorities or identify themselves as having been trafficked For
the purpose of this Financial Memorandum the Scottish Government has accepted the NCA
assessment that there are likely to be between two and three times as many potential victims of
trafficking as are currently identified through the NRM This assessment is based on the Scottish
Governmentrsquos best understanding of the hidden nature of this crime and the known reluctance of
some victims to identify their trafficked status or to engage with public authorities
Criminal justice response to human trafficking and exploitation
9 There have been relatively few prosecutions and convictions for human trafficking
offences under existing criminal justice legislationmdash
The Criminal Justice (Scotland) Act 20035 (―the 2003 Act) provides for offences of
trafficking for the purposes of exploitation by way of prostitution
The Asylum and Immigration (Treatment of Claimants etc) Act 20046 (―the 2004
Act) provides for offences of trafficking for labour and other forms of exploitation
The Criminal Justice and Licensing (Scotland) Act 20107 (―the 2010 Act) amended
and extended the 2003 and 2004 Acts and created a standalone offence of holding
someone in slavery or servitude or requiring a person to perform forced or
compulsory labour
10 The first successful convictions for human trafficking in Scotland were in 2011 under
section 22 of the 2003 Act for trafficking for the purposes of prostitution During 2013 a total of
four people were convicted of human trafficking offences - one person under section 22 of the
2003 Act and three people under section 4 of the 2004 Act for trafficking for forced marriage
4 httpwwwnationalcrimeagencygovukpublications399-nca-strategic-assessment-the-nature-and-scale-of-
human-trafficking-in-2013file 5 httpwwwlegislationgovukasp20037
6 httpwwwlegislationgovukukpga200419
7 httpwwwlegislationgovukasp201013
25
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
The average custodial sentence length for those convicted of trafficking offences was 847 days
(just under two years and four months) as well as any confiscation order imposed
11 Although the number of convictions for trafficking offences has been small police and
the Crown Office and Procurator Fiscal Service (COPFS) have confirmed that even though it is
not possible to always prove the trafficking offence where a credible suspicion exists people
suspected of involvement with trafficking can and often are prosecuted and convicted for other
crimes such as crimes associated with prostitution forced marriage immigration offences and
drugs offences etc
12 Police Scotland has established a dedicated National Human Trafficking Unit to enhance
the police response to human trafficking through awareness raising intelligence gathering
training and providing divisions with advice and specialist knowledge The COPFS has
appointed dedicated expert fiscals to prosecute human trafficking offences
Support for victims of trafficking
13 The Scottish Government currently allocates direct grant funding to non-government
organisations to provide and facilitate immediate support and assistance to the adult victims of
human trafficking This support can include immediate safe accommodation psychological
support assistance in accessing medical treatment material assistance interpretation and
translation and assistance either with repatriation or securing longer-term access to mainstream
services and support such as welfare benefits and housing The provision of support and
assistance is not conditional on the potential victim being willing to participate in the criminal
justice process Under the NRM victims of trafficking are guaranteed ―a recovery and reflection
period to recover from their experience escape the influence of those alleged to have trafficked
or exploited them and consider whether to engage with authorities The Council of Europe
Convention on Action Against Trafficking in Human Beings8 provides for a reflection period of
at least 30 days for all trafficked victims when there are reasonable grounds to believe that the
person concerned is a victim The current minimum recovery and reflection period in Scotland
and the rest of the UK is 45 days
14 In 2013-14 total grant funding of pound723000 was provided by the Scottish Government
towards the costs of ensuring immediate support and assistance for the adult victims and
potential victims of trafficking in Scotland This funding was provided through two non-
government organisationsmdash
the TARA Service which works with women aged 18 years and over across
Scotland where there are concerns that they have been trafficked for commercial
sexual exploitation and
Migrant Help a UK-wide organisation providing support and advice services to
migrants including new asylum claimants refugees EU nationals etc
15 Support for the child victims of trafficking is co-ordinated by local authorities as part of
their child protection arrangements and in line with the policy intention that children remain
8 httpwwwcoeinttdghlmonitoringtraffickingdocsconvntnCETS197_enasp
26
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
children first and that their needs should be treated accordingly The Scottish Government has
produced a toolkit for agencies working with children and young people to ensure that staff are
able to identify trafficked children and make appropriate referrals so that victims can receive
protection and support The toolkit is designed to be used in conjunction with National Child
Protection Guidance9 which was first published in 2010 and refreshed in 2014 and other
relevant national and international guidance Information about current expenditure on child
victims of trafficking is not recorded separately from information about wider expenditure on
child protection services
Lord Advocate guidance on prosecution policy
16 In his letter of 21 January 2013 to the Scottish Parliament European and External
Relations Committee10
the Lord Advocate set out the current arrangements for fiscals
considering the prosecution of a confirmed or potential victim of human trafficking where it is
believed or claimed that the crime was committed as a direct consequence of the personrsquos
trafficked status The letter set out the basis for the current Lord Advocatersquos guidance to
prosecutors including the presumption against the prosecution of a credible trafficking victim
for crimes that arise as a consequence of the victimrsquos trafficked status
Human trafficking strategic approach awareness raising and training
17 The first Scottish Human Trafficking Summit was hosted by the Cabinet Secretary for
Justice in October 2012 The summit brought together key law enforcement public private and
third sector organisations with an interest in human trafficking Following the summit a number
of strategic collaborative actions were agreed and progressed including with reference to
awareness raising and training for frontline staff data collection and analysis identification care
and support for both child and adult victims of trafficking and enhancing enforcement
18 One specific workstream related to awareness raising and training of front-line staff
likely to come into contact with trafficking victims or potential instances of trafficking
Following the summit Police Scotland with support from the Scottish Government and others
prepared published and circulated widely an awareness raising leaflet ndash Reading the Signs11
ndash to
assist police officers and staff in other front line posts in identifying the signs of potential
trafficking The Scottish Government also participated with the UK Government in a UK-wide
public awareness raising campaign about modern slavery and trafficking
19 In addition to general awareness raising specific training material was prepared for key
front-line staff For example all police officers were required to undertake an e-learning course
on human trafficking A special leaflet for health workers was prepared and circulated by NHS
Health Scotland An e-learning module for health workers about their role in identifying and
9 httpwwwscotlandgovukPublications2014053052
10httpwwwscottishparliamentukS3_EuropeanandExternalRelationsCommitteeGeneral20DocumentsLetterfro
mTheLordAdvocatepdf 11
httpwwwscotlandpoliceukassetspdf174967human-traffickingview=Standard
27
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
responding to victims of trafficking was made available through the National Gender Based
Violence and Health Programme12
IMPACT OF SPECIFIC PROVISIONS
PART 1 - OFFENCES
Single trafficking offence
20 The Bill establishes a new single offence of human trafficking for all types of
exploitation for both adults and children replacing existing separate criminal offences (see
paragraph 9 above) As noted above to date there have been relatively small numbers of
prosecutions under existing trafficking offences
21 The maximum penalty for conviction on indictment for the single trafficking offence will
be life imprisonment compared with a maximum of 14 years for the current separate offences
Although it will be for the court to decide how to sentence people convicted under the new single
offence in any given case it is likely that the availability of a higher maximum sentence will
have cost implications for the Scottish Prison Service (SPS)
Revised slavery servitude and forced labour offence
22 The Bill will also repeal and replace the existing exploitation offence within section 47 of
the 2010 Act which criminalises holding someone in slavery or servitude or requiring them to
perform compulsory or forced labour The offence will be revised and strengthened to allow the
court to consider in assessing whether a person has been a victim of an offence the victimrsquos
characteristics such as age physical or mental illness disability or where relevant family
relationships The maximum penalty for the offence will be increased from 14 years for the
current offence to life imprisonment for a conviction on indictment
Statutory aggravators
23 The Bill makes provision for statutory aggravators which apply in cases where an
accused person commits an offence connected with human trafficking and for when the offence
is committed in connection with the accusedrsquos position as a public official The court must take
the aggravation into account in determining the appropriate sentence if it is proved that the
offence is aggravated in this way The statutory aggravator is not anticipated to have any
substantial financial implications for public private or third sector bodies or for individuals
Costs on the Scottish Administration
24 Consolidating and clarifying the existing criminal law on trafficking and exploitation
alongside other measures arising from the Bill and the trafficking and exploitation strategy
including training and awareness raising and support for victims should increase the potential
for successful investigations prosecutions and convictions of human trafficking and exploitation
offences There have been six successful prosecutions for a specific trafficking offence to date in
Scotland with an average custodial sentence length of two years and four months against a
12
httpwwwgbvscotnhsuk
28
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
maximum possible sentence of 14 years The maximum number of prosecutions in any one year
was four individuals in two separate cases
25 Police and prosecutors already have in place specialist resources for investigating and
prosecuting human trafficking and exploitation offences and these provisions will not add to
these costs Law enforcement agencies have confirmed that whilst the number of prosecutions
for specific trafficking offences has been low where victims are identified but are unwilling to
testify individuals suspected of trafficking and exploitation will be prosecuted in court for other
related offences The Lord Advocate has identified that ―If we donrsquot have the evidence [to
prosecute for a specific human trafficking offence] we prosecute for fraud ID theft or asylum
and immigration offences13
26 The Scottish Government does not anticipate therefore significant additional cost
implications for law enforcement agencies or courts as cases will often proceed with a
trafficking offence alongside or in place of other related offences For the same reason the
Scottish Government does not anticipate significant additional cost on the Scottish Legal Aid
Board (SLAB) However if it is assumed that the number of successful trials proceeding in any
single year doubles from two to four there would be some additional costs on the COPFS the
Scottish Court Service (SCS) and SLAB based on the average unit costs for cases proceeded
either through Sheriff Court Solemn procedure or through the High Court These estimated costs
depending on whether cases are proceeded through the High Court or Sheriff Court solemn
procedure are illustrated in the table below
Table 3 Estimated unit costs of additional trial procedures through either High Court or
Sheriff Court solemn procedure (pound000)
Average prosecution
costs per procedure
(COPFS)
Average court costs
per procedure (SCS)
Average legal aid
costs per procedure
(SLAB)
Sheriff Court solemn
procedure (pound000) pound49 pound19 pound16
High Court (pound000) pound556 pound90 pound135
Estimated average
costs of 2 additional
trial procedures 4
accused per annum
(pound000)
pound99-pound1112 pound38-pound180 pound64-pound540
Source costs of the Criminal Justice System in Scotland Dataset (2013)14
27 There will also be costs to the SPS both through any increase in the number of successful
convictions for trafficking and exploitation offences and an anticipated increase in the average
length of custodial sentence for these crimes It is not possible to know for certain the total
13
httpwwwdailyrecordcouknewsscottish-newsonly-three-successful-prosecutions-brought-4457684 14httpwwwscotlandgovukTopicsStatisticsBrowseCrimeJusticePublicationscostcrimjustsc
otcostcrimjustdatasethttpwwwscotlandgovukTopicsStatisticsBrowseCrimeJusticePublicationscostcrimj
ustscotcostcrimjustdataset
29
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
number of future convictions or what sentencing decisions might be taken by courts in individual
cases
28 The table below illustrates the potential cost implications of either maintaining or
increasing the current maximum number of convictions in any individual year from four to eight
convictions For the purpose of the calculation it is assumed that the average custodial sentence
length for trafficking and exploitation offences will increase from two years and four months
(classified as a short-term sentence) to over four years (classified as a long-term sentence) as
increasing the maximum sentence to life imprisonment is anticipated to increase the average
sentence for a trafficking offence The estimated average annual cost of a prison place based on
SPS figures is pound42500 Taking account of the current early release arrangements for long-term
prisoners and the overlapping of individual sentences would result in an estimated increase of 8
to 21 total prison places each year after four years ndash ie with an additional four people receiving
custodial sentences each year and released by the Parole Board at the halfway point of their
sentence or automatically at the two-thirds point The total costs to the SPS will be within a
range of pound340000 to pound890000 These costs will fit within the overall budget costs to the SPS
As at 17 October 2014 there were 7731 people in custody in Scotland An additional 21 places
accounts for 03 of the total prison population
Table 4 Estimated range of costs to the Scottish Prison Service from increasing the
number and average length of successful prosecutions for trafficking offences
Year 1 Year 2 Year 3 Year 4
Additional Prison places 0-4 4-12 8-17 8-21
Additional Cost (pound000) pound0-pound170 pound170- pound510 pound340-pound720 pound340-pound890
Table 5 Estimated range of combined costs for trial procedures and prison places
Year 1 Year 2 Year 3 Year 4
Additional Cost (pound000) pound20-pound353 pound190- pound693 pound360-pound900 pound360-pound1073
Costs on other bodies individuals and businesses
29 There will be no new costs falling on other bodies individuals and businesses as a
consequence of these sections but see the section below with reference to victim support
Costs on local authorities
30 There will be no new costs falling on local authorities as a consequence of these specific
sections
PART 2 - PROTECTION OF VICTIMS
Duty on the Lord Advocate to publish guidance about the prosecution of credible trafficking and
exploitation victims who have committed offences
Costs on the Scottish Administration
31 As noted above the Lord Advocate already prepares and publishes guidance to fiscals
about the prosecution of credible victims of human trafficking for crimes committed as a direct
30
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
consequence of their trafficking status The requirement to publish such guidance would in
future be statutory However there will be no new costs on the Scottish Government or the
COPFS as a consequence of placing the requirement for the Lord Advocate to issue this
guidance on a statutory basis
Costs on other bodies individuals and businesses
32 There will be no new costs falling on other bodies individuals and businesses as a
consequence of these sections
Costs on local authorities
33 There will be no new costs falling on local authorities as a consequence of these sections
Ensure the rights of victims to access and support
34 The Bill will place a statutory duty on the Scottish Ministers to secure the provision of
relevant immediate support and recovery services for adult victims of trafficking subject to an
assessment of need The Bill will specify those victims or potential victims entitled to support
and the minimum time periods during which such services should be provided Specifically the
Bill will require Ministers to provide support and assistance based on each individualrsquos assessed
needs during the recovery and reflection period (currently 45 days) during which the
individualrsquos trafficking status is determined The Bill specifies minimum support and assistance
that should be considered as part of the assessment including access to housing treatment
interpretation services etc The Scottish Ministers have the flexibility to provide support and
assistance outwith the specified reflection and recovery period where this is considered
appropriate
35 As noted above the Scottish Ministers already provide grant funding totalling pound723000
to third sector organisations to assist identified adult potential victims of trafficking Provision of
support to adult victims will be placed on a statutory basis The number of adult potential victims
of trafficking referred through the NRM during 2013 was 77 although not all of these will have
requested assistance or received the full range of support services It is assumed that other
actions arising from the Bill including the single offence and publication of the trafficking and
exploitation strategy will result over time in an increase in identified victims and requests for
assistance and support
Costs on the Scottish Administration
36 The Scottish Government anticipates that improved awareness raising and training of
front-line staff will result in an increase in the number of victims identified over time It is not
possible to know how quickly this improvement will be achieved However between 2012 and
2013 the number of potential identified victims across the UK identified through the NCA
strategic assessment and NRM increased by 22 and 41 respectively Given the need for
awareness raising and training to impact the Scottish Government does not anticipate a similar
scale of increase in the immediate term but the Government considers it reasonable to anticipate
a possible increase of between 10 and 20 per annum in the overall number of requests for
assistance and support each year over the next four years Assuming a similar mix of needs as
31
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
current victims the increased costs to the Scottish Government on top of existing funding
would range between pound290000 to pound580000 per annum by year four
Table 6 Estimated range of costs increases for victim support and assistance (pound000)
Year 1 Year 2 Year 3 Year 4
Additional Cost (pound000) pound0-pound140 pound140-pound280 pound220-pound430 pound290-pound580
Costs on other bodies individuals and businesses
37 There will be no additional costs on other public bodies individuals or businesses
associated with these specific provisions There will be no direct additional costs falling on third
sector organisations as a consequence of the specific provisions It is likely however that all or
part of the additional funding identified above will be directed by the Scottish Government
through relevant third sector organisations with the expertise to provide immediate support and
protection to victims
Costs on local authorities
38 The Bill creates no new legislative requirements for the delivery of childrenrsquos services
recognising that this already exists It is therefore not anticipated that the Bill will result in any
quantifiable additional costs on local authorities or other public bodies as a result of support for
child victims Child victims of trafficking are supported as part of the Getting It Right for Every
Child (GIRFEC) approach any child whether identified as trafficked or not will be assessed on
the basis of its needs It is anticipated that as a consequence of the strategy (for which the Bill
provides) that more children may be identified as trafficked It is noted however that various
reports including most recently the UK Governmentrsquos NRM Review Report15
have found that
children who are already receiving support from relevant authorities in the UK are often not
identified as trafficked victims because of lack of awareness of the referral process It may be
that actions arising from the development of the strategy and dialogue with stakeholders will
give rise to additional activity or costs with reference to child victims of trafficking but these are
not known and cannot be estimated at this time
PART 3 - CONFISCATION OF PROPERTY
39 The Bill will provide police with powers to detain the property such as cars boats etc of
a person arrested for a trafficking offence This power will be exercised at the time of arrest and
is not expected to impose any additional costs on the police or others
Costs on the Scottish Administration
40 There will be no additional costs on the Scottish Government as a result of these
provisions Individuals can apply to the court to have vehicles ships or aircraft released from
detention This will be considered as part of the overall case and will not add to the costs to the
criminal justice system
15
httpsnrmhomeofficegovuk
32
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
Costs on other bodies individuals and businesses
41 There will be no additional costs on other public bodies individuals or businesses
including Police Scotland as a result of these specific provisions
Costs on local authorities
42 There will be no additional costs on local authorities as a result of these specific
provisions
PART 4 - TRAFFICKING AND EXPLOITATION PREVENTION AND RISK ORDERS
Introduce new measures to disrupt and prevent trafficking and exploitation
43 The Bill will introduce two new civil orders and associated interim orders to assist in
preventing trafficking and exploitation Trafficking and Exploitation Prevention Orders (TEPOs)
and Trafficking and Exploitation Risk Orders (TEROs) Where an individual has been convicted
of a trafficking or exploitation offence or an offence with a statutory trafficking aggravator a
TEPO may be imposed by a court where there is a risk that that individual may commit a further
human trafficking offence and it is necessary to make the order to protect people from the
physical or psychological harm which might occur if such an offence were committed The
TEPO will prevent the individual from engaging in activities described in the order Where a
person has not been convicted of a trafficking or exploitation offence but a court considers that
the person presents a significant risk of harm to others through the individual committing a
trafficking or exploitation offence the court can impose a TERO restricting specific activities or
imposing requirements These orders will be civil but breach of an order will constitute a
criminal offence with a maximum penalty of five years in prison available to the court
44 The Bill will categorise the trafficking and exploitation offences as lifestyle offences in
order to automatically trigger provisions within the Proceeds of Crime Act 2002 (―the 2002
Act) The definition of an offence as a ―lifestyle offence allows for proceedings under the
2002 Act to confiscate assets or monies from the individual convicted of the offence
Costs on the Scottish Administration
45 The purpose of TEPOs and TEROs is to prevent criminal activity associated with
trafficking and exploitation from arising There will be some cost implications for law
enforcement organisations which will need to monitor the terms of any order imposed by the
courts However these will be offset by the savings made from being able to intervene at an
early stage of criminality if an order has been breached For the equivalent civil orders within the
UK Modern Slavery Bill the UK Government has estimated potential net savings of between
pound130000 and pound1090000 per annum The Scottish Government has not incorporated any
savings for the purpose of Scottish legislation but expects the costs of implementing TEPOs and
TEROs and detention powers to be at least cost neutral for the Scottish Administration and other
public bodies
33
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
46 The Bill will give courts powers to impose a TEPO at the time of sentencing There will
be no immediate additional costs for the courts or COPFS associated with TEPOs imposed as
part of sentencing The Chief Constable of Police Scotland will also be able to apply to the court
for a TEPO to be imposed on a relevant offender previously convicted of a trafficking offence
There will be costs to Police Scotland in making the application and to the SCS and to SLAB in
considering the application As there have been only six previous convictions for trafficking
offences in Scotland the Scottish Government expects the number of applications for TEPOs for
previous convictions to be small one-off and will not add to the overall costs of the criminal
justice system The Chief Constable of Police Scotland can also apply to the court for a TERO
against an individual where it is considered that that individual is likely to commit a trafficking
offence
47 Looking at the equivalent costs for similar civil orders eg Sexual Offences Prevention
Orders the total costs to the SCS the COPFS and SLAB of applying for a TERO or post-
sentencing TEPO are estimated at between pound1000 and pound6000 per order It is not possible to
know how many TEPOs or TEROs might be applied for but assuming a number half the level of
the estimated maximum number of potential convictions for trafficking offences each year (four
to eight) would give estimated costs of between pound2000 (2 x pound1000) and pound24000 (4 x pound6000)
per annum
48 There will be costs to Police Scotland in monitoring TEPOs and TEROs whether
imposed at the time of sentence or by application but this will sit alongside Police Scotlandrsquos
existing crime prevention and investigative responsibilities and is not expected to add to
manpower costs
49 In addition to the costs of imposing and monitoring TEPOs and TEROs there will be
costs associated with prosecuting a breach of a TEPO or TERO Analysis in England and Wales
indicates that breaches of equivalent Serious Crime Prevention Orders are relatively low
Assuming one breach per annum the total combined costs to the COPFS the SCS and SLAB
would be between pound8400 and pound78100 per annum (see the combined costs for either sheriff
court or High Court procedures set out in Table 3 above) Assuming a maximum sentence of
five years the costs to the SPS for additional prison places would be between pound85000 and
pound127500 per annum (ie the pound42500 average costs of a prison place times either two or three
places depending on whether offenders are released early at the halfway or two-thirds point of
their sentence)
50 It is important to remember however that the purpose of TEPOs and TEROs is to
prevent further trafficking and exploitation offences occurring A TEPO or TERO will only be
imposed where a court considers that there is a credible risk of an individual committing such a
crime Any costs associated with the imposition and breach of TEPOs and TEROs needs to be
offset against the potential costs of prosecutions If each TEPO or TERO prevents the costs of a
conviction for an offence as set out in Part 1 above the costs to the Scottish Administration
would be at least cost neutral in terms of saved court and prison places expenditure
34
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
Costs on other bodies individuals and businesses
51 There will be no costs on other bodies businesses or other individuals as a consequence
of these sections
Costs on local authorities
52 There will be no new costs on local authorities as a consequence of these sections
PART 5 - STRATEGY AND REPORTING
Ensure a strategic cross-agency approach to tackling trafficking
53 The Bill places a duty on the Scottish Ministers to prepare publish and regularly review
and update a trafficking and exploitation strategy to assist in ensuring a co-ordinated and
strategic approach to this issue The provisions place a duty on Ministers to consult with such
organisations and individuals as they consider to have a relevant interest in the issues of human
trafficking and exploitation The Bill places a duty on relevant public bodies to be named in
regulations to assist in the preparation and review of the strategy
54 The Bill will place a duty on relevant public authorities to provide anonymised data about
potential human trafficking and exploitation victims to Police Scotland
Costs on the Scottish Administration
55 Activity arising from these provisions within the Bill will build on the activity and
current resources already committed to this area of work
56 Based on similar activities the estimated additional costs to the Scottish Ministers of
preparing and reviewing a trafficking and exploitation strategy will be approximately pound25000
every three years Alongside the preparation and publication of the strategy the Scottish
Ministers would also propose to support additional awareness raising and training activity to
build on the existing awareness raising and training activity already undertaken by relevant
organisations including the NHS Police Scotland and COPFS Consideration would be given to
how best to co-ordinate these resources alongside existing expenditure and activity For the
purposes of the Financial Memorandum and based on current activity additional costs on top of
existing activity are estimated at approximately pound100000 to pound250000 per annum over the first
four years of the Bill This is based on the best estimated costs of preparing and publishing
publicity and guidance material averaged over a number of years The exact costs will depend
on decisions taken in dialogue with stakeholders as part of the preparation of the strategy
57 The Scottish Government anticipates that the costs to relevant public authorities of
providing anonymised data about potential human trafficking victims to Police Scotland will be
marginal Costs to Police Scotland of collating this data will form part of their existing
intelligence gathering activity
35
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
Costs on other bodies individuals and businesses
58 There will be some costs on other bodies individuals and businesses in engaging with the
Scottish Ministers in the preparation and publication of the Strategy For business and
individuals this will be voluntary depending on their willingness to engage For public bodies
their level of engagement will depend on the relevance of the issue of trafficking and
exploitation to their work and their potential contribution to combating this behaviour Any
additional costs are expected to fit within or sit alongside their existing responsibilities for
example with reference to promoting and ensuring equalities and the application of human
rights obligations
Costs on local authorities
59 There will be costs on local authorities associated with engaging in the preparation and
review of the trafficking and exploitation strategy and in awareness raising and training of front-
line staff The additional costs should be marginal on top of the existing guidance and activity
already in place with reference to the identification and support of potential child victims of
trafficking The aim will be to minimise costs for other front-line local authority staff by
adapting the general awareness raising and training materials described above
SUMMARY
60 The table below provides a summary of the costs of each element of the Bill as described
above
Table 7 Summary table of costs for each aspect of the Bill (pound000)
Year 1 Year 2 Year 3 Year 4
Clarifying amp
Strengthening the
Criminal Law ndash Para 28 pound20-pound353 pound190- pound693 pound360-pound900 pound360-pound1073
Ensure the rights of
victims to access and
support - Para 36 pound70-pound140 pound140-pound280 pound220-pound430 pound290-pound580
Introduce new measures to
disrupt and prevent
trafficking pound016
pound0 pound0 pound0
Ensure a strategic cross
agency approach to
tackling trafficking ndash Para
56 pound125-pound275 pound100-pound250 pound100-pound250 pound125-pound275
TOTAL pound215-pound768 pound430-pound1223 pound680-pound1580 pound775-pound1928
16
The Scottish Government considers that the overall costs are at least cost neutral ndash see paragraphs 45 to 50
36
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December
SCOTTISH GOVERNMENT STATEMENT ON LEGISLATIVE
COMPETENCE
On 11 December 2014 the Cabinet Secretary for Justice (Michael Matheson MSP) made the
following statement
―In my view the provisions of the Human Trafficking and Exploitation (Scotland) Bill
would be within the legislative competence of the Scottish Parliament
mdashmdashmdashmdashmdashmdashmdashmdashmdashmdash
PRESIDING OFFICERrsquoS STATEMENT ON LEGISLATIVE
COMPETENCE
On 11 December 2014 the Presiding Officer (Rt Hon Tricia Marwick MSP) made the following
statement
―In my view the provisions of the Human Trafficking and Exploitation (Scotland) Bill
would be within the legislative competence of the Scottish Parliament
37
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December
SP Bill 57ndashEN Session 4 (2014)
HUMAN TRAFFICKING AND EXPLOITATION
(SCOTLAND) BILL
EXPLANATORY NOTES
(AND OTHER ACCOMPANYING DOCUMENTS)
Parliamentary copyright Scottish Parliamentary Corporate Body
Information on the Scottish Parliamentrsquos copyright policy can be found on the website -
wwwscottishparliamentuk
Produced and published in Scotland on behalf of the Scottish Parliamentary Corporate Body by APS
Group Scotland
ISBN 978-1-78534-569-2
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
FINANCIAL MEMORANDUM
INTRODUCTION
1 This document relates to the Human Trafficking and Exploitation (Scotland) Bill (―the
Bill) introduced in the Scottish Parliament on 11 December 2014 It has been prepared by the
Scottish Government to satisfy Rule 932 of the Parliamentrsquos Standing Orders It does not form
part of the Bill and has not been endorsed by the Parliament
2 The purpose of the Bill is to consolidate and strengthen the existing criminal law against
human trafficking and exploitation and enhance the status and support provided to victims Bill
provisions are in the following Partsmdash
Part 1 (Offences) includes provision on the creation of a single offence of human trafficking
for all types of exploitation of both adults and children establishes statutory aggravators of
human trafficking for use with other crimes and reframes the current standalone offence of
slavery servitude and forced or compulsory labour
Part 2 (Protection of victims) includes provision on prosecutorial guidelines for the
prosecution of victims and provision about the support and assistance to which adult victims
are entitled
Part 3 (Confiscation of property) includes provision on detention and forfeiture of property
and proceeds of crime
Part 4 (Trafficking and exploitation prevention and risk orders) includes provision on
two new preventive orders the trafficking and exploitation prevention order and the
trafficking and exploitation risk order
Part 5 (Strategy and reporting) includes provision on the trafficking and exploitation
strategy and the duty on specified Scottish public authorities to notify and provide
information about victims
Part 6 contains general and ancillary provisions
3 This Financial Memorandum considers the financial implications of each of the elements
of the Bill where relevant
BACKGROUND
4 Before considering the financial implications associated with the specific provisions
within the Bill it is important to consider both the current estimated extent of human trafficking
in Scotland and existing activity by public bodies and others in response to this issue
23
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
Extent of human trafficking in Scotland
5 Human trafficking is by its nature a hidden crime The National Referral Mechanism
(NRM) is the process set up by the UK Government to identify and support victims of trafficking
in the UK The NRM is also the mechanism by which the UK Human Trafficking Centre
collects data about potential victims of trafficking Information about suspected child and adult
victims of human trafficking is referred by relevant ―first responder organisations such as the
police and third sector bodies for example Migrant Help and the Trafficking Awareness Raising
Alliance (TARA) Referrals relate to victims trafficked from outside and within the UK The
table below summarises the most recent available information on NRM referrals from first
responder organisations in Scotland
Table 1 Recent referrals from first responders in Scotland of potential child and adult
human trafficking victims to the National Referral Mechanism
2012 2013
Adults 67 77
Children 29 22
Total 96 99
of all UK Referrals 8 6
Source National Crime Agency National Referral Mechanism Statistics 2012 and 20131
6 Various reports confirm that the number of victims referred through the NRM is likely to
be a significant underestimate of the actual number of potential victims of trafficking For
example the Equality and Human Rights Commission Inquiry into Human Trafficking in
Scotland (2011) noted ―estimates of identified potential victims do not reflect what is likely to be
a much greater number of unidentified victims2
7 The UK National Crime Agency (NCA) Strategic Assessment of the Nature and Scale of
Human Trafficking in the UK3 aims to provide an indication of the nature and scale of human
trafficking beyond the number of referrals to the NRM The assessment is produced using
intelligence held by the NCA the NRM and intelligence information collected from agencies
such as Police Scotland the Home Office Gangmastersrsquo Licensing Authority and non-
government organisations The assessment removes information of potential victims referred to
the NRM who have received a negative ―reasonable grounds or ―conclusive decision (ie it
has been confirmed that they are not victims of trafficking) or duplicate information about
individuals (ie the same person has been referred more than once or by more than one agency)
to show a total number of ―unique potential victims of trafficking The NCA Assessment for
2013 indicated that there were significantly more unique potential victims of human trafficking
identified across the UK than the numbers referred to the NRM even excluding those that
received a negative decision and that the number of unique victims was increasing
1 httpwwwnationalcrimeagencygovukpublications399-nca-strategic-assessment-the-nature-and-scale-of-
human-trafficking-in-2013file 2httpwwwequalityhumanrightscomsitesdefaultfilesdocumentsScotlandHuman_Trafficking_in_Scotland_inq
uiry_into_human_trafficking_in_scotland-full-report_pdf_pdf 3 httpwwwnationalcrimeagencygovukpublications399-nca-strategic-assessment-the-nature-and-scale-of-
human-trafficking-in-2013file
24
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
Table 2 Comparison of recent UK referrals to the National Referral Mechanism and the
National Crime Agency Strategic Assessment of the Scale of Human Trafficking
2012 2013 Change
Referred to NRM 778 1095 +41
NCA Assessment No of
Unique Potential Victims
Identified
2255 2744 +22
Source National Crime Agency Strategic Assessment of the Nature and Scale of Human
Trafficking in the UK4
8 For Scotland the NCA Assessment for 2013 identified 55 unique potential victims of
human trafficking compared with 99 referrals to the NRM It is not known why in contrast to
the position in England and Wales the NCA Assessment for Scotland is lower than the NRM
referrals although it will exclude potential victims who received a negative conclusive decision
and duplicate referrals However these numbers must be treated with significant caution There
remains strong conviction amongst law enforcement bodies and victims organisations that there
are more victims of trafficking than are identified and that even once identified victims are
often unwilling to engage with authorities or identify themselves as having been trafficked For
the purpose of this Financial Memorandum the Scottish Government has accepted the NCA
assessment that there are likely to be between two and three times as many potential victims of
trafficking as are currently identified through the NRM This assessment is based on the Scottish
Governmentrsquos best understanding of the hidden nature of this crime and the known reluctance of
some victims to identify their trafficked status or to engage with public authorities
Criminal justice response to human trafficking and exploitation
9 There have been relatively few prosecutions and convictions for human trafficking
offences under existing criminal justice legislationmdash
The Criminal Justice (Scotland) Act 20035 (―the 2003 Act) provides for offences of
trafficking for the purposes of exploitation by way of prostitution
The Asylum and Immigration (Treatment of Claimants etc) Act 20046 (―the 2004
Act) provides for offences of trafficking for labour and other forms of exploitation
The Criminal Justice and Licensing (Scotland) Act 20107 (―the 2010 Act) amended
and extended the 2003 and 2004 Acts and created a standalone offence of holding
someone in slavery or servitude or requiring a person to perform forced or
compulsory labour
10 The first successful convictions for human trafficking in Scotland were in 2011 under
section 22 of the 2003 Act for trafficking for the purposes of prostitution During 2013 a total of
four people were convicted of human trafficking offences - one person under section 22 of the
2003 Act and three people under section 4 of the 2004 Act for trafficking for forced marriage
4 httpwwwnationalcrimeagencygovukpublications399-nca-strategic-assessment-the-nature-and-scale-of-
human-trafficking-in-2013file 5 httpwwwlegislationgovukasp20037
6 httpwwwlegislationgovukukpga200419
7 httpwwwlegislationgovukasp201013
25
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
The average custodial sentence length for those convicted of trafficking offences was 847 days
(just under two years and four months) as well as any confiscation order imposed
11 Although the number of convictions for trafficking offences has been small police and
the Crown Office and Procurator Fiscal Service (COPFS) have confirmed that even though it is
not possible to always prove the trafficking offence where a credible suspicion exists people
suspected of involvement with trafficking can and often are prosecuted and convicted for other
crimes such as crimes associated with prostitution forced marriage immigration offences and
drugs offences etc
12 Police Scotland has established a dedicated National Human Trafficking Unit to enhance
the police response to human trafficking through awareness raising intelligence gathering
training and providing divisions with advice and specialist knowledge The COPFS has
appointed dedicated expert fiscals to prosecute human trafficking offences
Support for victims of trafficking
13 The Scottish Government currently allocates direct grant funding to non-government
organisations to provide and facilitate immediate support and assistance to the adult victims of
human trafficking This support can include immediate safe accommodation psychological
support assistance in accessing medical treatment material assistance interpretation and
translation and assistance either with repatriation or securing longer-term access to mainstream
services and support such as welfare benefits and housing The provision of support and
assistance is not conditional on the potential victim being willing to participate in the criminal
justice process Under the NRM victims of trafficking are guaranteed ―a recovery and reflection
period to recover from their experience escape the influence of those alleged to have trafficked
or exploited them and consider whether to engage with authorities The Council of Europe
Convention on Action Against Trafficking in Human Beings8 provides for a reflection period of
at least 30 days for all trafficked victims when there are reasonable grounds to believe that the
person concerned is a victim The current minimum recovery and reflection period in Scotland
and the rest of the UK is 45 days
14 In 2013-14 total grant funding of pound723000 was provided by the Scottish Government
towards the costs of ensuring immediate support and assistance for the adult victims and
potential victims of trafficking in Scotland This funding was provided through two non-
government organisationsmdash
the TARA Service which works with women aged 18 years and over across
Scotland where there are concerns that they have been trafficked for commercial
sexual exploitation and
Migrant Help a UK-wide organisation providing support and advice services to
migrants including new asylum claimants refugees EU nationals etc
15 Support for the child victims of trafficking is co-ordinated by local authorities as part of
their child protection arrangements and in line with the policy intention that children remain
8 httpwwwcoeinttdghlmonitoringtraffickingdocsconvntnCETS197_enasp
26
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
children first and that their needs should be treated accordingly The Scottish Government has
produced a toolkit for agencies working with children and young people to ensure that staff are
able to identify trafficked children and make appropriate referrals so that victims can receive
protection and support The toolkit is designed to be used in conjunction with National Child
Protection Guidance9 which was first published in 2010 and refreshed in 2014 and other
relevant national and international guidance Information about current expenditure on child
victims of trafficking is not recorded separately from information about wider expenditure on
child protection services
Lord Advocate guidance on prosecution policy
16 In his letter of 21 January 2013 to the Scottish Parliament European and External
Relations Committee10
the Lord Advocate set out the current arrangements for fiscals
considering the prosecution of a confirmed or potential victim of human trafficking where it is
believed or claimed that the crime was committed as a direct consequence of the personrsquos
trafficked status The letter set out the basis for the current Lord Advocatersquos guidance to
prosecutors including the presumption against the prosecution of a credible trafficking victim
for crimes that arise as a consequence of the victimrsquos trafficked status
Human trafficking strategic approach awareness raising and training
17 The first Scottish Human Trafficking Summit was hosted by the Cabinet Secretary for
Justice in October 2012 The summit brought together key law enforcement public private and
third sector organisations with an interest in human trafficking Following the summit a number
of strategic collaborative actions were agreed and progressed including with reference to
awareness raising and training for frontline staff data collection and analysis identification care
and support for both child and adult victims of trafficking and enhancing enforcement
18 One specific workstream related to awareness raising and training of front-line staff
likely to come into contact with trafficking victims or potential instances of trafficking
Following the summit Police Scotland with support from the Scottish Government and others
prepared published and circulated widely an awareness raising leaflet ndash Reading the Signs11
ndash to
assist police officers and staff in other front line posts in identifying the signs of potential
trafficking The Scottish Government also participated with the UK Government in a UK-wide
public awareness raising campaign about modern slavery and trafficking
19 In addition to general awareness raising specific training material was prepared for key
front-line staff For example all police officers were required to undertake an e-learning course
on human trafficking A special leaflet for health workers was prepared and circulated by NHS
Health Scotland An e-learning module for health workers about their role in identifying and
9 httpwwwscotlandgovukPublications2014053052
10httpwwwscottishparliamentukS3_EuropeanandExternalRelationsCommitteeGeneral20DocumentsLetterfro
mTheLordAdvocatepdf 11
httpwwwscotlandpoliceukassetspdf174967human-traffickingview=Standard
27
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
responding to victims of trafficking was made available through the National Gender Based
Violence and Health Programme12
IMPACT OF SPECIFIC PROVISIONS
PART 1 - OFFENCES
Single trafficking offence
20 The Bill establishes a new single offence of human trafficking for all types of
exploitation for both adults and children replacing existing separate criminal offences (see
paragraph 9 above) As noted above to date there have been relatively small numbers of
prosecutions under existing trafficking offences
21 The maximum penalty for conviction on indictment for the single trafficking offence will
be life imprisonment compared with a maximum of 14 years for the current separate offences
Although it will be for the court to decide how to sentence people convicted under the new single
offence in any given case it is likely that the availability of a higher maximum sentence will
have cost implications for the Scottish Prison Service (SPS)
Revised slavery servitude and forced labour offence
22 The Bill will also repeal and replace the existing exploitation offence within section 47 of
the 2010 Act which criminalises holding someone in slavery or servitude or requiring them to
perform compulsory or forced labour The offence will be revised and strengthened to allow the
court to consider in assessing whether a person has been a victim of an offence the victimrsquos
characteristics such as age physical or mental illness disability or where relevant family
relationships The maximum penalty for the offence will be increased from 14 years for the
current offence to life imprisonment for a conviction on indictment
Statutory aggravators
23 The Bill makes provision for statutory aggravators which apply in cases where an
accused person commits an offence connected with human trafficking and for when the offence
is committed in connection with the accusedrsquos position as a public official The court must take
the aggravation into account in determining the appropriate sentence if it is proved that the
offence is aggravated in this way The statutory aggravator is not anticipated to have any
substantial financial implications for public private or third sector bodies or for individuals
Costs on the Scottish Administration
24 Consolidating and clarifying the existing criminal law on trafficking and exploitation
alongside other measures arising from the Bill and the trafficking and exploitation strategy
including training and awareness raising and support for victims should increase the potential
for successful investigations prosecutions and convictions of human trafficking and exploitation
offences There have been six successful prosecutions for a specific trafficking offence to date in
Scotland with an average custodial sentence length of two years and four months against a
12
httpwwwgbvscotnhsuk
28
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
maximum possible sentence of 14 years The maximum number of prosecutions in any one year
was four individuals in two separate cases
25 Police and prosecutors already have in place specialist resources for investigating and
prosecuting human trafficking and exploitation offences and these provisions will not add to
these costs Law enforcement agencies have confirmed that whilst the number of prosecutions
for specific trafficking offences has been low where victims are identified but are unwilling to
testify individuals suspected of trafficking and exploitation will be prosecuted in court for other
related offences The Lord Advocate has identified that ―If we donrsquot have the evidence [to
prosecute for a specific human trafficking offence] we prosecute for fraud ID theft or asylum
and immigration offences13
26 The Scottish Government does not anticipate therefore significant additional cost
implications for law enforcement agencies or courts as cases will often proceed with a
trafficking offence alongside or in place of other related offences For the same reason the
Scottish Government does not anticipate significant additional cost on the Scottish Legal Aid
Board (SLAB) However if it is assumed that the number of successful trials proceeding in any
single year doubles from two to four there would be some additional costs on the COPFS the
Scottish Court Service (SCS) and SLAB based on the average unit costs for cases proceeded
either through Sheriff Court Solemn procedure or through the High Court These estimated costs
depending on whether cases are proceeded through the High Court or Sheriff Court solemn
procedure are illustrated in the table below
Table 3 Estimated unit costs of additional trial procedures through either High Court or
Sheriff Court solemn procedure (pound000)
Average prosecution
costs per procedure
(COPFS)
Average court costs
per procedure (SCS)
Average legal aid
costs per procedure
(SLAB)
Sheriff Court solemn
procedure (pound000) pound49 pound19 pound16
High Court (pound000) pound556 pound90 pound135
Estimated average
costs of 2 additional
trial procedures 4
accused per annum
(pound000)
pound99-pound1112 pound38-pound180 pound64-pound540
Source costs of the Criminal Justice System in Scotland Dataset (2013)14
27 There will also be costs to the SPS both through any increase in the number of successful
convictions for trafficking and exploitation offences and an anticipated increase in the average
length of custodial sentence for these crimes It is not possible to know for certain the total
13
httpwwwdailyrecordcouknewsscottish-newsonly-three-successful-prosecutions-brought-4457684 14httpwwwscotlandgovukTopicsStatisticsBrowseCrimeJusticePublicationscostcrimjustsc
otcostcrimjustdatasethttpwwwscotlandgovukTopicsStatisticsBrowseCrimeJusticePublicationscostcrimj
ustscotcostcrimjustdataset
29
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
number of future convictions or what sentencing decisions might be taken by courts in individual
cases
28 The table below illustrates the potential cost implications of either maintaining or
increasing the current maximum number of convictions in any individual year from four to eight
convictions For the purpose of the calculation it is assumed that the average custodial sentence
length for trafficking and exploitation offences will increase from two years and four months
(classified as a short-term sentence) to over four years (classified as a long-term sentence) as
increasing the maximum sentence to life imprisonment is anticipated to increase the average
sentence for a trafficking offence The estimated average annual cost of a prison place based on
SPS figures is pound42500 Taking account of the current early release arrangements for long-term
prisoners and the overlapping of individual sentences would result in an estimated increase of 8
to 21 total prison places each year after four years ndash ie with an additional four people receiving
custodial sentences each year and released by the Parole Board at the halfway point of their
sentence or automatically at the two-thirds point The total costs to the SPS will be within a
range of pound340000 to pound890000 These costs will fit within the overall budget costs to the SPS
As at 17 October 2014 there were 7731 people in custody in Scotland An additional 21 places
accounts for 03 of the total prison population
Table 4 Estimated range of costs to the Scottish Prison Service from increasing the
number and average length of successful prosecutions for trafficking offences
Year 1 Year 2 Year 3 Year 4
Additional Prison places 0-4 4-12 8-17 8-21
Additional Cost (pound000) pound0-pound170 pound170- pound510 pound340-pound720 pound340-pound890
Table 5 Estimated range of combined costs for trial procedures and prison places
Year 1 Year 2 Year 3 Year 4
Additional Cost (pound000) pound20-pound353 pound190- pound693 pound360-pound900 pound360-pound1073
Costs on other bodies individuals and businesses
29 There will be no new costs falling on other bodies individuals and businesses as a
consequence of these sections but see the section below with reference to victim support
Costs on local authorities
30 There will be no new costs falling on local authorities as a consequence of these specific
sections
PART 2 - PROTECTION OF VICTIMS
Duty on the Lord Advocate to publish guidance about the prosecution of credible trafficking and
exploitation victims who have committed offences
Costs on the Scottish Administration
31 As noted above the Lord Advocate already prepares and publishes guidance to fiscals
about the prosecution of credible victims of human trafficking for crimes committed as a direct
30
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
consequence of their trafficking status The requirement to publish such guidance would in
future be statutory However there will be no new costs on the Scottish Government or the
COPFS as a consequence of placing the requirement for the Lord Advocate to issue this
guidance on a statutory basis
Costs on other bodies individuals and businesses
32 There will be no new costs falling on other bodies individuals and businesses as a
consequence of these sections
Costs on local authorities
33 There will be no new costs falling on local authorities as a consequence of these sections
Ensure the rights of victims to access and support
34 The Bill will place a statutory duty on the Scottish Ministers to secure the provision of
relevant immediate support and recovery services for adult victims of trafficking subject to an
assessment of need The Bill will specify those victims or potential victims entitled to support
and the minimum time periods during which such services should be provided Specifically the
Bill will require Ministers to provide support and assistance based on each individualrsquos assessed
needs during the recovery and reflection period (currently 45 days) during which the
individualrsquos trafficking status is determined The Bill specifies minimum support and assistance
that should be considered as part of the assessment including access to housing treatment
interpretation services etc The Scottish Ministers have the flexibility to provide support and
assistance outwith the specified reflection and recovery period where this is considered
appropriate
35 As noted above the Scottish Ministers already provide grant funding totalling pound723000
to third sector organisations to assist identified adult potential victims of trafficking Provision of
support to adult victims will be placed on a statutory basis The number of adult potential victims
of trafficking referred through the NRM during 2013 was 77 although not all of these will have
requested assistance or received the full range of support services It is assumed that other
actions arising from the Bill including the single offence and publication of the trafficking and
exploitation strategy will result over time in an increase in identified victims and requests for
assistance and support
Costs on the Scottish Administration
36 The Scottish Government anticipates that improved awareness raising and training of
front-line staff will result in an increase in the number of victims identified over time It is not
possible to know how quickly this improvement will be achieved However between 2012 and
2013 the number of potential identified victims across the UK identified through the NCA
strategic assessment and NRM increased by 22 and 41 respectively Given the need for
awareness raising and training to impact the Scottish Government does not anticipate a similar
scale of increase in the immediate term but the Government considers it reasonable to anticipate
a possible increase of between 10 and 20 per annum in the overall number of requests for
assistance and support each year over the next four years Assuming a similar mix of needs as
31
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
current victims the increased costs to the Scottish Government on top of existing funding
would range between pound290000 to pound580000 per annum by year four
Table 6 Estimated range of costs increases for victim support and assistance (pound000)
Year 1 Year 2 Year 3 Year 4
Additional Cost (pound000) pound0-pound140 pound140-pound280 pound220-pound430 pound290-pound580
Costs on other bodies individuals and businesses
37 There will be no additional costs on other public bodies individuals or businesses
associated with these specific provisions There will be no direct additional costs falling on third
sector organisations as a consequence of the specific provisions It is likely however that all or
part of the additional funding identified above will be directed by the Scottish Government
through relevant third sector organisations with the expertise to provide immediate support and
protection to victims
Costs on local authorities
38 The Bill creates no new legislative requirements for the delivery of childrenrsquos services
recognising that this already exists It is therefore not anticipated that the Bill will result in any
quantifiable additional costs on local authorities or other public bodies as a result of support for
child victims Child victims of trafficking are supported as part of the Getting It Right for Every
Child (GIRFEC) approach any child whether identified as trafficked or not will be assessed on
the basis of its needs It is anticipated that as a consequence of the strategy (for which the Bill
provides) that more children may be identified as trafficked It is noted however that various
reports including most recently the UK Governmentrsquos NRM Review Report15
have found that
children who are already receiving support from relevant authorities in the UK are often not
identified as trafficked victims because of lack of awareness of the referral process It may be
that actions arising from the development of the strategy and dialogue with stakeholders will
give rise to additional activity or costs with reference to child victims of trafficking but these are
not known and cannot be estimated at this time
PART 3 - CONFISCATION OF PROPERTY
39 The Bill will provide police with powers to detain the property such as cars boats etc of
a person arrested for a trafficking offence This power will be exercised at the time of arrest and
is not expected to impose any additional costs on the police or others
Costs on the Scottish Administration
40 There will be no additional costs on the Scottish Government as a result of these
provisions Individuals can apply to the court to have vehicles ships or aircraft released from
detention This will be considered as part of the overall case and will not add to the costs to the
criminal justice system
15
httpsnrmhomeofficegovuk
32
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
Costs on other bodies individuals and businesses
41 There will be no additional costs on other public bodies individuals or businesses
including Police Scotland as a result of these specific provisions
Costs on local authorities
42 There will be no additional costs on local authorities as a result of these specific
provisions
PART 4 - TRAFFICKING AND EXPLOITATION PREVENTION AND RISK ORDERS
Introduce new measures to disrupt and prevent trafficking and exploitation
43 The Bill will introduce two new civil orders and associated interim orders to assist in
preventing trafficking and exploitation Trafficking and Exploitation Prevention Orders (TEPOs)
and Trafficking and Exploitation Risk Orders (TEROs) Where an individual has been convicted
of a trafficking or exploitation offence or an offence with a statutory trafficking aggravator a
TEPO may be imposed by a court where there is a risk that that individual may commit a further
human trafficking offence and it is necessary to make the order to protect people from the
physical or psychological harm which might occur if such an offence were committed The
TEPO will prevent the individual from engaging in activities described in the order Where a
person has not been convicted of a trafficking or exploitation offence but a court considers that
the person presents a significant risk of harm to others through the individual committing a
trafficking or exploitation offence the court can impose a TERO restricting specific activities or
imposing requirements These orders will be civil but breach of an order will constitute a
criminal offence with a maximum penalty of five years in prison available to the court
44 The Bill will categorise the trafficking and exploitation offences as lifestyle offences in
order to automatically trigger provisions within the Proceeds of Crime Act 2002 (―the 2002
Act) The definition of an offence as a ―lifestyle offence allows for proceedings under the
2002 Act to confiscate assets or monies from the individual convicted of the offence
Costs on the Scottish Administration
45 The purpose of TEPOs and TEROs is to prevent criminal activity associated with
trafficking and exploitation from arising There will be some cost implications for law
enforcement organisations which will need to monitor the terms of any order imposed by the
courts However these will be offset by the savings made from being able to intervene at an
early stage of criminality if an order has been breached For the equivalent civil orders within the
UK Modern Slavery Bill the UK Government has estimated potential net savings of between
pound130000 and pound1090000 per annum The Scottish Government has not incorporated any
savings for the purpose of Scottish legislation but expects the costs of implementing TEPOs and
TEROs and detention powers to be at least cost neutral for the Scottish Administration and other
public bodies
33
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
46 The Bill will give courts powers to impose a TEPO at the time of sentencing There will
be no immediate additional costs for the courts or COPFS associated with TEPOs imposed as
part of sentencing The Chief Constable of Police Scotland will also be able to apply to the court
for a TEPO to be imposed on a relevant offender previously convicted of a trafficking offence
There will be costs to Police Scotland in making the application and to the SCS and to SLAB in
considering the application As there have been only six previous convictions for trafficking
offences in Scotland the Scottish Government expects the number of applications for TEPOs for
previous convictions to be small one-off and will not add to the overall costs of the criminal
justice system The Chief Constable of Police Scotland can also apply to the court for a TERO
against an individual where it is considered that that individual is likely to commit a trafficking
offence
47 Looking at the equivalent costs for similar civil orders eg Sexual Offences Prevention
Orders the total costs to the SCS the COPFS and SLAB of applying for a TERO or post-
sentencing TEPO are estimated at between pound1000 and pound6000 per order It is not possible to
know how many TEPOs or TEROs might be applied for but assuming a number half the level of
the estimated maximum number of potential convictions for trafficking offences each year (four
to eight) would give estimated costs of between pound2000 (2 x pound1000) and pound24000 (4 x pound6000)
per annum
48 There will be costs to Police Scotland in monitoring TEPOs and TEROs whether
imposed at the time of sentence or by application but this will sit alongside Police Scotlandrsquos
existing crime prevention and investigative responsibilities and is not expected to add to
manpower costs
49 In addition to the costs of imposing and monitoring TEPOs and TEROs there will be
costs associated with prosecuting a breach of a TEPO or TERO Analysis in England and Wales
indicates that breaches of equivalent Serious Crime Prevention Orders are relatively low
Assuming one breach per annum the total combined costs to the COPFS the SCS and SLAB
would be between pound8400 and pound78100 per annum (see the combined costs for either sheriff
court or High Court procedures set out in Table 3 above) Assuming a maximum sentence of
five years the costs to the SPS for additional prison places would be between pound85000 and
pound127500 per annum (ie the pound42500 average costs of a prison place times either two or three
places depending on whether offenders are released early at the halfway or two-thirds point of
their sentence)
50 It is important to remember however that the purpose of TEPOs and TEROs is to
prevent further trafficking and exploitation offences occurring A TEPO or TERO will only be
imposed where a court considers that there is a credible risk of an individual committing such a
crime Any costs associated with the imposition and breach of TEPOs and TEROs needs to be
offset against the potential costs of prosecutions If each TEPO or TERO prevents the costs of a
conviction for an offence as set out in Part 1 above the costs to the Scottish Administration
would be at least cost neutral in terms of saved court and prison places expenditure
34
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
Costs on other bodies individuals and businesses
51 There will be no costs on other bodies businesses or other individuals as a consequence
of these sections
Costs on local authorities
52 There will be no new costs on local authorities as a consequence of these sections
PART 5 - STRATEGY AND REPORTING
Ensure a strategic cross-agency approach to tackling trafficking
53 The Bill places a duty on the Scottish Ministers to prepare publish and regularly review
and update a trafficking and exploitation strategy to assist in ensuring a co-ordinated and
strategic approach to this issue The provisions place a duty on Ministers to consult with such
organisations and individuals as they consider to have a relevant interest in the issues of human
trafficking and exploitation The Bill places a duty on relevant public bodies to be named in
regulations to assist in the preparation and review of the strategy
54 The Bill will place a duty on relevant public authorities to provide anonymised data about
potential human trafficking and exploitation victims to Police Scotland
Costs on the Scottish Administration
55 Activity arising from these provisions within the Bill will build on the activity and
current resources already committed to this area of work
56 Based on similar activities the estimated additional costs to the Scottish Ministers of
preparing and reviewing a trafficking and exploitation strategy will be approximately pound25000
every three years Alongside the preparation and publication of the strategy the Scottish
Ministers would also propose to support additional awareness raising and training activity to
build on the existing awareness raising and training activity already undertaken by relevant
organisations including the NHS Police Scotland and COPFS Consideration would be given to
how best to co-ordinate these resources alongside existing expenditure and activity For the
purposes of the Financial Memorandum and based on current activity additional costs on top of
existing activity are estimated at approximately pound100000 to pound250000 per annum over the first
four years of the Bill This is based on the best estimated costs of preparing and publishing
publicity and guidance material averaged over a number of years The exact costs will depend
on decisions taken in dialogue with stakeholders as part of the preparation of the strategy
57 The Scottish Government anticipates that the costs to relevant public authorities of
providing anonymised data about potential human trafficking victims to Police Scotland will be
marginal Costs to Police Scotland of collating this data will form part of their existing
intelligence gathering activity
35
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
Costs on other bodies individuals and businesses
58 There will be some costs on other bodies individuals and businesses in engaging with the
Scottish Ministers in the preparation and publication of the Strategy For business and
individuals this will be voluntary depending on their willingness to engage For public bodies
their level of engagement will depend on the relevance of the issue of trafficking and
exploitation to their work and their potential contribution to combating this behaviour Any
additional costs are expected to fit within or sit alongside their existing responsibilities for
example with reference to promoting and ensuring equalities and the application of human
rights obligations
Costs on local authorities
59 There will be costs on local authorities associated with engaging in the preparation and
review of the trafficking and exploitation strategy and in awareness raising and training of front-
line staff The additional costs should be marginal on top of the existing guidance and activity
already in place with reference to the identification and support of potential child victims of
trafficking The aim will be to minimise costs for other front-line local authority staff by
adapting the general awareness raising and training materials described above
SUMMARY
60 The table below provides a summary of the costs of each element of the Bill as described
above
Table 7 Summary table of costs for each aspect of the Bill (pound000)
Year 1 Year 2 Year 3 Year 4
Clarifying amp
Strengthening the
Criminal Law ndash Para 28 pound20-pound353 pound190- pound693 pound360-pound900 pound360-pound1073
Ensure the rights of
victims to access and
support - Para 36 pound70-pound140 pound140-pound280 pound220-pound430 pound290-pound580
Introduce new measures to
disrupt and prevent
trafficking pound016
pound0 pound0 pound0
Ensure a strategic cross
agency approach to
tackling trafficking ndash Para
56 pound125-pound275 pound100-pound250 pound100-pound250 pound125-pound275
TOTAL pound215-pound768 pound430-pound1223 pound680-pound1580 pound775-pound1928
16
The Scottish Government considers that the overall costs are at least cost neutral ndash see paragraphs 45 to 50
36
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December
SCOTTISH GOVERNMENT STATEMENT ON LEGISLATIVE
COMPETENCE
On 11 December 2014 the Cabinet Secretary for Justice (Michael Matheson MSP) made the
following statement
―In my view the provisions of the Human Trafficking and Exploitation (Scotland) Bill
would be within the legislative competence of the Scottish Parliament
mdashmdashmdashmdashmdashmdashmdashmdashmdashmdash
PRESIDING OFFICERrsquoS STATEMENT ON LEGISLATIVE
COMPETENCE
On 11 December 2014 the Presiding Officer (Rt Hon Tricia Marwick MSP) made the following
statement
―In my view the provisions of the Human Trafficking and Exploitation (Scotland) Bill
would be within the legislative competence of the Scottish Parliament
37
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December
SP Bill 57ndashEN Session 4 (2014)
HUMAN TRAFFICKING AND EXPLOITATION
(SCOTLAND) BILL
EXPLANATORY NOTES
(AND OTHER ACCOMPANYING DOCUMENTS)
Parliamentary copyright Scottish Parliamentary Corporate Body
Information on the Scottish Parliamentrsquos copyright policy can be found on the website -
wwwscottishparliamentuk
Produced and published in Scotland on behalf of the Scottish Parliamentary Corporate Body by APS
Group Scotland
ISBN 978-1-78534-569-2
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
Extent of human trafficking in Scotland
5 Human trafficking is by its nature a hidden crime The National Referral Mechanism
(NRM) is the process set up by the UK Government to identify and support victims of trafficking
in the UK The NRM is also the mechanism by which the UK Human Trafficking Centre
collects data about potential victims of trafficking Information about suspected child and adult
victims of human trafficking is referred by relevant ―first responder organisations such as the
police and third sector bodies for example Migrant Help and the Trafficking Awareness Raising
Alliance (TARA) Referrals relate to victims trafficked from outside and within the UK The
table below summarises the most recent available information on NRM referrals from first
responder organisations in Scotland
Table 1 Recent referrals from first responders in Scotland of potential child and adult
human trafficking victims to the National Referral Mechanism
2012 2013
Adults 67 77
Children 29 22
Total 96 99
of all UK Referrals 8 6
Source National Crime Agency National Referral Mechanism Statistics 2012 and 20131
6 Various reports confirm that the number of victims referred through the NRM is likely to
be a significant underestimate of the actual number of potential victims of trafficking For
example the Equality and Human Rights Commission Inquiry into Human Trafficking in
Scotland (2011) noted ―estimates of identified potential victims do not reflect what is likely to be
a much greater number of unidentified victims2
7 The UK National Crime Agency (NCA) Strategic Assessment of the Nature and Scale of
Human Trafficking in the UK3 aims to provide an indication of the nature and scale of human
trafficking beyond the number of referrals to the NRM The assessment is produced using
intelligence held by the NCA the NRM and intelligence information collected from agencies
such as Police Scotland the Home Office Gangmastersrsquo Licensing Authority and non-
government organisations The assessment removes information of potential victims referred to
the NRM who have received a negative ―reasonable grounds or ―conclusive decision (ie it
has been confirmed that they are not victims of trafficking) or duplicate information about
individuals (ie the same person has been referred more than once or by more than one agency)
to show a total number of ―unique potential victims of trafficking The NCA Assessment for
2013 indicated that there were significantly more unique potential victims of human trafficking
identified across the UK than the numbers referred to the NRM even excluding those that
received a negative decision and that the number of unique victims was increasing
1 httpwwwnationalcrimeagencygovukpublications399-nca-strategic-assessment-the-nature-and-scale-of-
human-trafficking-in-2013file 2httpwwwequalityhumanrightscomsitesdefaultfilesdocumentsScotlandHuman_Trafficking_in_Scotland_inq
uiry_into_human_trafficking_in_scotland-full-report_pdf_pdf 3 httpwwwnationalcrimeagencygovukpublications399-nca-strategic-assessment-the-nature-and-scale-of-
human-trafficking-in-2013file
24
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
Table 2 Comparison of recent UK referrals to the National Referral Mechanism and the
National Crime Agency Strategic Assessment of the Scale of Human Trafficking
2012 2013 Change
Referred to NRM 778 1095 +41
NCA Assessment No of
Unique Potential Victims
Identified
2255 2744 +22
Source National Crime Agency Strategic Assessment of the Nature and Scale of Human
Trafficking in the UK4
8 For Scotland the NCA Assessment for 2013 identified 55 unique potential victims of
human trafficking compared with 99 referrals to the NRM It is not known why in contrast to
the position in England and Wales the NCA Assessment for Scotland is lower than the NRM
referrals although it will exclude potential victims who received a negative conclusive decision
and duplicate referrals However these numbers must be treated with significant caution There
remains strong conviction amongst law enforcement bodies and victims organisations that there
are more victims of trafficking than are identified and that even once identified victims are
often unwilling to engage with authorities or identify themselves as having been trafficked For
the purpose of this Financial Memorandum the Scottish Government has accepted the NCA
assessment that there are likely to be between two and three times as many potential victims of
trafficking as are currently identified through the NRM This assessment is based on the Scottish
Governmentrsquos best understanding of the hidden nature of this crime and the known reluctance of
some victims to identify their trafficked status or to engage with public authorities
Criminal justice response to human trafficking and exploitation
9 There have been relatively few prosecutions and convictions for human trafficking
offences under existing criminal justice legislationmdash
The Criminal Justice (Scotland) Act 20035 (―the 2003 Act) provides for offences of
trafficking for the purposes of exploitation by way of prostitution
The Asylum and Immigration (Treatment of Claimants etc) Act 20046 (―the 2004
Act) provides for offences of trafficking for labour and other forms of exploitation
The Criminal Justice and Licensing (Scotland) Act 20107 (―the 2010 Act) amended
and extended the 2003 and 2004 Acts and created a standalone offence of holding
someone in slavery or servitude or requiring a person to perform forced or
compulsory labour
10 The first successful convictions for human trafficking in Scotland were in 2011 under
section 22 of the 2003 Act for trafficking for the purposes of prostitution During 2013 a total of
four people were convicted of human trafficking offences - one person under section 22 of the
2003 Act and three people under section 4 of the 2004 Act for trafficking for forced marriage
4 httpwwwnationalcrimeagencygovukpublications399-nca-strategic-assessment-the-nature-and-scale-of-
human-trafficking-in-2013file 5 httpwwwlegislationgovukasp20037
6 httpwwwlegislationgovukukpga200419
7 httpwwwlegislationgovukasp201013
25
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
The average custodial sentence length for those convicted of trafficking offences was 847 days
(just under two years and four months) as well as any confiscation order imposed
11 Although the number of convictions for trafficking offences has been small police and
the Crown Office and Procurator Fiscal Service (COPFS) have confirmed that even though it is
not possible to always prove the trafficking offence where a credible suspicion exists people
suspected of involvement with trafficking can and often are prosecuted and convicted for other
crimes such as crimes associated with prostitution forced marriage immigration offences and
drugs offences etc
12 Police Scotland has established a dedicated National Human Trafficking Unit to enhance
the police response to human trafficking through awareness raising intelligence gathering
training and providing divisions with advice and specialist knowledge The COPFS has
appointed dedicated expert fiscals to prosecute human trafficking offences
Support for victims of trafficking
13 The Scottish Government currently allocates direct grant funding to non-government
organisations to provide and facilitate immediate support and assistance to the adult victims of
human trafficking This support can include immediate safe accommodation psychological
support assistance in accessing medical treatment material assistance interpretation and
translation and assistance either with repatriation or securing longer-term access to mainstream
services and support such as welfare benefits and housing The provision of support and
assistance is not conditional on the potential victim being willing to participate in the criminal
justice process Under the NRM victims of trafficking are guaranteed ―a recovery and reflection
period to recover from their experience escape the influence of those alleged to have trafficked
or exploited them and consider whether to engage with authorities The Council of Europe
Convention on Action Against Trafficking in Human Beings8 provides for a reflection period of
at least 30 days for all trafficked victims when there are reasonable grounds to believe that the
person concerned is a victim The current minimum recovery and reflection period in Scotland
and the rest of the UK is 45 days
14 In 2013-14 total grant funding of pound723000 was provided by the Scottish Government
towards the costs of ensuring immediate support and assistance for the adult victims and
potential victims of trafficking in Scotland This funding was provided through two non-
government organisationsmdash
the TARA Service which works with women aged 18 years and over across
Scotland where there are concerns that they have been trafficked for commercial
sexual exploitation and
Migrant Help a UK-wide organisation providing support and advice services to
migrants including new asylum claimants refugees EU nationals etc
15 Support for the child victims of trafficking is co-ordinated by local authorities as part of
their child protection arrangements and in line with the policy intention that children remain
8 httpwwwcoeinttdghlmonitoringtraffickingdocsconvntnCETS197_enasp
26
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
children first and that their needs should be treated accordingly The Scottish Government has
produced a toolkit for agencies working with children and young people to ensure that staff are
able to identify trafficked children and make appropriate referrals so that victims can receive
protection and support The toolkit is designed to be used in conjunction with National Child
Protection Guidance9 which was first published in 2010 and refreshed in 2014 and other
relevant national and international guidance Information about current expenditure on child
victims of trafficking is not recorded separately from information about wider expenditure on
child protection services
Lord Advocate guidance on prosecution policy
16 In his letter of 21 January 2013 to the Scottish Parliament European and External
Relations Committee10
the Lord Advocate set out the current arrangements for fiscals
considering the prosecution of a confirmed or potential victim of human trafficking where it is
believed or claimed that the crime was committed as a direct consequence of the personrsquos
trafficked status The letter set out the basis for the current Lord Advocatersquos guidance to
prosecutors including the presumption against the prosecution of a credible trafficking victim
for crimes that arise as a consequence of the victimrsquos trafficked status
Human trafficking strategic approach awareness raising and training
17 The first Scottish Human Trafficking Summit was hosted by the Cabinet Secretary for
Justice in October 2012 The summit brought together key law enforcement public private and
third sector organisations with an interest in human trafficking Following the summit a number
of strategic collaborative actions were agreed and progressed including with reference to
awareness raising and training for frontline staff data collection and analysis identification care
and support for both child and adult victims of trafficking and enhancing enforcement
18 One specific workstream related to awareness raising and training of front-line staff
likely to come into contact with trafficking victims or potential instances of trafficking
Following the summit Police Scotland with support from the Scottish Government and others
prepared published and circulated widely an awareness raising leaflet ndash Reading the Signs11
ndash to
assist police officers and staff in other front line posts in identifying the signs of potential
trafficking The Scottish Government also participated with the UK Government in a UK-wide
public awareness raising campaign about modern slavery and trafficking
19 In addition to general awareness raising specific training material was prepared for key
front-line staff For example all police officers were required to undertake an e-learning course
on human trafficking A special leaflet for health workers was prepared and circulated by NHS
Health Scotland An e-learning module for health workers about their role in identifying and
9 httpwwwscotlandgovukPublications2014053052
10httpwwwscottishparliamentukS3_EuropeanandExternalRelationsCommitteeGeneral20DocumentsLetterfro
mTheLordAdvocatepdf 11
httpwwwscotlandpoliceukassetspdf174967human-traffickingview=Standard
27
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
responding to victims of trafficking was made available through the National Gender Based
Violence and Health Programme12
IMPACT OF SPECIFIC PROVISIONS
PART 1 - OFFENCES
Single trafficking offence
20 The Bill establishes a new single offence of human trafficking for all types of
exploitation for both adults and children replacing existing separate criminal offences (see
paragraph 9 above) As noted above to date there have been relatively small numbers of
prosecutions under existing trafficking offences
21 The maximum penalty for conviction on indictment for the single trafficking offence will
be life imprisonment compared with a maximum of 14 years for the current separate offences
Although it will be for the court to decide how to sentence people convicted under the new single
offence in any given case it is likely that the availability of a higher maximum sentence will
have cost implications for the Scottish Prison Service (SPS)
Revised slavery servitude and forced labour offence
22 The Bill will also repeal and replace the existing exploitation offence within section 47 of
the 2010 Act which criminalises holding someone in slavery or servitude or requiring them to
perform compulsory or forced labour The offence will be revised and strengthened to allow the
court to consider in assessing whether a person has been a victim of an offence the victimrsquos
characteristics such as age physical or mental illness disability or where relevant family
relationships The maximum penalty for the offence will be increased from 14 years for the
current offence to life imprisonment for a conviction on indictment
Statutory aggravators
23 The Bill makes provision for statutory aggravators which apply in cases where an
accused person commits an offence connected with human trafficking and for when the offence
is committed in connection with the accusedrsquos position as a public official The court must take
the aggravation into account in determining the appropriate sentence if it is proved that the
offence is aggravated in this way The statutory aggravator is not anticipated to have any
substantial financial implications for public private or third sector bodies or for individuals
Costs on the Scottish Administration
24 Consolidating and clarifying the existing criminal law on trafficking and exploitation
alongside other measures arising from the Bill and the trafficking and exploitation strategy
including training and awareness raising and support for victims should increase the potential
for successful investigations prosecutions and convictions of human trafficking and exploitation
offences There have been six successful prosecutions for a specific trafficking offence to date in
Scotland with an average custodial sentence length of two years and four months against a
12
httpwwwgbvscotnhsuk
28
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
maximum possible sentence of 14 years The maximum number of prosecutions in any one year
was four individuals in two separate cases
25 Police and prosecutors already have in place specialist resources for investigating and
prosecuting human trafficking and exploitation offences and these provisions will not add to
these costs Law enforcement agencies have confirmed that whilst the number of prosecutions
for specific trafficking offences has been low where victims are identified but are unwilling to
testify individuals suspected of trafficking and exploitation will be prosecuted in court for other
related offences The Lord Advocate has identified that ―If we donrsquot have the evidence [to
prosecute for a specific human trafficking offence] we prosecute for fraud ID theft or asylum
and immigration offences13
26 The Scottish Government does not anticipate therefore significant additional cost
implications for law enforcement agencies or courts as cases will often proceed with a
trafficking offence alongside or in place of other related offences For the same reason the
Scottish Government does not anticipate significant additional cost on the Scottish Legal Aid
Board (SLAB) However if it is assumed that the number of successful trials proceeding in any
single year doubles from two to four there would be some additional costs on the COPFS the
Scottish Court Service (SCS) and SLAB based on the average unit costs for cases proceeded
either through Sheriff Court Solemn procedure or through the High Court These estimated costs
depending on whether cases are proceeded through the High Court or Sheriff Court solemn
procedure are illustrated in the table below
Table 3 Estimated unit costs of additional trial procedures through either High Court or
Sheriff Court solemn procedure (pound000)
Average prosecution
costs per procedure
(COPFS)
Average court costs
per procedure (SCS)
Average legal aid
costs per procedure
(SLAB)
Sheriff Court solemn
procedure (pound000) pound49 pound19 pound16
High Court (pound000) pound556 pound90 pound135
Estimated average
costs of 2 additional
trial procedures 4
accused per annum
(pound000)
pound99-pound1112 pound38-pound180 pound64-pound540
Source costs of the Criminal Justice System in Scotland Dataset (2013)14
27 There will also be costs to the SPS both through any increase in the number of successful
convictions for trafficking and exploitation offences and an anticipated increase in the average
length of custodial sentence for these crimes It is not possible to know for certain the total
13
httpwwwdailyrecordcouknewsscottish-newsonly-three-successful-prosecutions-brought-4457684 14httpwwwscotlandgovukTopicsStatisticsBrowseCrimeJusticePublicationscostcrimjustsc
otcostcrimjustdatasethttpwwwscotlandgovukTopicsStatisticsBrowseCrimeJusticePublicationscostcrimj
ustscotcostcrimjustdataset
29
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
number of future convictions or what sentencing decisions might be taken by courts in individual
cases
28 The table below illustrates the potential cost implications of either maintaining or
increasing the current maximum number of convictions in any individual year from four to eight
convictions For the purpose of the calculation it is assumed that the average custodial sentence
length for trafficking and exploitation offences will increase from two years and four months
(classified as a short-term sentence) to over four years (classified as a long-term sentence) as
increasing the maximum sentence to life imprisonment is anticipated to increase the average
sentence for a trafficking offence The estimated average annual cost of a prison place based on
SPS figures is pound42500 Taking account of the current early release arrangements for long-term
prisoners and the overlapping of individual sentences would result in an estimated increase of 8
to 21 total prison places each year after four years ndash ie with an additional four people receiving
custodial sentences each year and released by the Parole Board at the halfway point of their
sentence or automatically at the two-thirds point The total costs to the SPS will be within a
range of pound340000 to pound890000 These costs will fit within the overall budget costs to the SPS
As at 17 October 2014 there were 7731 people in custody in Scotland An additional 21 places
accounts for 03 of the total prison population
Table 4 Estimated range of costs to the Scottish Prison Service from increasing the
number and average length of successful prosecutions for trafficking offences
Year 1 Year 2 Year 3 Year 4
Additional Prison places 0-4 4-12 8-17 8-21
Additional Cost (pound000) pound0-pound170 pound170- pound510 pound340-pound720 pound340-pound890
Table 5 Estimated range of combined costs for trial procedures and prison places
Year 1 Year 2 Year 3 Year 4
Additional Cost (pound000) pound20-pound353 pound190- pound693 pound360-pound900 pound360-pound1073
Costs on other bodies individuals and businesses
29 There will be no new costs falling on other bodies individuals and businesses as a
consequence of these sections but see the section below with reference to victim support
Costs on local authorities
30 There will be no new costs falling on local authorities as a consequence of these specific
sections
PART 2 - PROTECTION OF VICTIMS
Duty on the Lord Advocate to publish guidance about the prosecution of credible trafficking and
exploitation victims who have committed offences
Costs on the Scottish Administration
31 As noted above the Lord Advocate already prepares and publishes guidance to fiscals
about the prosecution of credible victims of human trafficking for crimes committed as a direct
30
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
consequence of their trafficking status The requirement to publish such guidance would in
future be statutory However there will be no new costs on the Scottish Government or the
COPFS as a consequence of placing the requirement for the Lord Advocate to issue this
guidance on a statutory basis
Costs on other bodies individuals and businesses
32 There will be no new costs falling on other bodies individuals and businesses as a
consequence of these sections
Costs on local authorities
33 There will be no new costs falling on local authorities as a consequence of these sections
Ensure the rights of victims to access and support
34 The Bill will place a statutory duty on the Scottish Ministers to secure the provision of
relevant immediate support and recovery services for adult victims of trafficking subject to an
assessment of need The Bill will specify those victims or potential victims entitled to support
and the minimum time periods during which such services should be provided Specifically the
Bill will require Ministers to provide support and assistance based on each individualrsquos assessed
needs during the recovery and reflection period (currently 45 days) during which the
individualrsquos trafficking status is determined The Bill specifies minimum support and assistance
that should be considered as part of the assessment including access to housing treatment
interpretation services etc The Scottish Ministers have the flexibility to provide support and
assistance outwith the specified reflection and recovery period where this is considered
appropriate
35 As noted above the Scottish Ministers already provide grant funding totalling pound723000
to third sector organisations to assist identified adult potential victims of trafficking Provision of
support to adult victims will be placed on a statutory basis The number of adult potential victims
of trafficking referred through the NRM during 2013 was 77 although not all of these will have
requested assistance or received the full range of support services It is assumed that other
actions arising from the Bill including the single offence and publication of the trafficking and
exploitation strategy will result over time in an increase in identified victims and requests for
assistance and support
Costs on the Scottish Administration
36 The Scottish Government anticipates that improved awareness raising and training of
front-line staff will result in an increase in the number of victims identified over time It is not
possible to know how quickly this improvement will be achieved However between 2012 and
2013 the number of potential identified victims across the UK identified through the NCA
strategic assessment and NRM increased by 22 and 41 respectively Given the need for
awareness raising and training to impact the Scottish Government does not anticipate a similar
scale of increase in the immediate term but the Government considers it reasonable to anticipate
a possible increase of between 10 and 20 per annum in the overall number of requests for
assistance and support each year over the next four years Assuming a similar mix of needs as
31
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
current victims the increased costs to the Scottish Government on top of existing funding
would range between pound290000 to pound580000 per annum by year four
Table 6 Estimated range of costs increases for victim support and assistance (pound000)
Year 1 Year 2 Year 3 Year 4
Additional Cost (pound000) pound0-pound140 pound140-pound280 pound220-pound430 pound290-pound580
Costs on other bodies individuals and businesses
37 There will be no additional costs on other public bodies individuals or businesses
associated with these specific provisions There will be no direct additional costs falling on third
sector organisations as a consequence of the specific provisions It is likely however that all or
part of the additional funding identified above will be directed by the Scottish Government
through relevant third sector organisations with the expertise to provide immediate support and
protection to victims
Costs on local authorities
38 The Bill creates no new legislative requirements for the delivery of childrenrsquos services
recognising that this already exists It is therefore not anticipated that the Bill will result in any
quantifiable additional costs on local authorities or other public bodies as a result of support for
child victims Child victims of trafficking are supported as part of the Getting It Right for Every
Child (GIRFEC) approach any child whether identified as trafficked or not will be assessed on
the basis of its needs It is anticipated that as a consequence of the strategy (for which the Bill
provides) that more children may be identified as trafficked It is noted however that various
reports including most recently the UK Governmentrsquos NRM Review Report15
have found that
children who are already receiving support from relevant authorities in the UK are often not
identified as trafficked victims because of lack of awareness of the referral process It may be
that actions arising from the development of the strategy and dialogue with stakeholders will
give rise to additional activity or costs with reference to child victims of trafficking but these are
not known and cannot be estimated at this time
PART 3 - CONFISCATION OF PROPERTY
39 The Bill will provide police with powers to detain the property such as cars boats etc of
a person arrested for a trafficking offence This power will be exercised at the time of arrest and
is not expected to impose any additional costs on the police or others
Costs on the Scottish Administration
40 There will be no additional costs on the Scottish Government as a result of these
provisions Individuals can apply to the court to have vehicles ships or aircraft released from
detention This will be considered as part of the overall case and will not add to the costs to the
criminal justice system
15
httpsnrmhomeofficegovuk
32
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
Costs on other bodies individuals and businesses
41 There will be no additional costs on other public bodies individuals or businesses
including Police Scotland as a result of these specific provisions
Costs on local authorities
42 There will be no additional costs on local authorities as a result of these specific
provisions
PART 4 - TRAFFICKING AND EXPLOITATION PREVENTION AND RISK ORDERS
Introduce new measures to disrupt and prevent trafficking and exploitation
43 The Bill will introduce two new civil orders and associated interim orders to assist in
preventing trafficking and exploitation Trafficking and Exploitation Prevention Orders (TEPOs)
and Trafficking and Exploitation Risk Orders (TEROs) Where an individual has been convicted
of a trafficking or exploitation offence or an offence with a statutory trafficking aggravator a
TEPO may be imposed by a court where there is a risk that that individual may commit a further
human trafficking offence and it is necessary to make the order to protect people from the
physical or psychological harm which might occur if such an offence were committed The
TEPO will prevent the individual from engaging in activities described in the order Where a
person has not been convicted of a trafficking or exploitation offence but a court considers that
the person presents a significant risk of harm to others through the individual committing a
trafficking or exploitation offence the court can impose a TERO restricting specific activities or
imposing requirements These orders will be civil but breach of an order will constitute a
criminal offence with a maximum penalty of five years in prison available to the court
44 The Bill will categorise the trafficking and exploitation offences as lifestyle offences in
order to automatically trigger provisions within the Proceeds of Crime Act 2002 (―the 2002
Act) The definition of an offence as a ―lifestyle offence allows for proceedings under the
2002 Act to confiscate assets or monies from the individual convicted of the offence
Costs on the Scottish Administration
45 The purpose of TEPOs and TEROs is to prevent criminal activity associated with
trafficking and exploitation from arising There will be some cost implications for law
enforcement organisations which will need to monitor the terms of any order imposed by the
courts However these will be offset by the savings made from being able to intervene at an
early stage of criminality if an order has been breached For the equivalent civil orders within the
UK Modern Slavery Bill the UK Government has estimated potential net savings of between
pound130000 and pound1090000 per annum The Scottish Government has not incorporated any
savings for the purpose of Scottish legislation but expects the costs of implementing TEPOs and
TEROs and detention powers to be at least cost neutral for the Scottish Administration and other
public bodies
33
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
46 The Bill will give courts powers to impose a TEPO at the time of sentencing There will
be no immediate additional costs for the courts or COPFS associated with TEPOs imposed as
part of sentencing The Chief Constable of Police Scotland will also be able to apply to the court
for a TEPO to be imposed on a relevant offender previously convicted of a trafficking offence
There will be costs to Police Scotland in making the application and to the SCS and to SLAB in
considering the application As there have been only six previous convictions for trafficking
offences in Scotland the Scottish Government expects the number of applications for TEPOs for
previous convictions to be small one-off and will not add to the overall costs of the criminal
justice system The Chief Constable of Police Scotland can also apply to the court for a TERO
against an individual where it is considered that that individual is likely to commit a trafficking
offence
47 Looking at the equivalent costs for similar civil orders eg Sexual Offences Prevention
Orders the total costs to the SCS the COPFS and SLAB of applying for a TERO or post-
sentencing TEPO are estimated at between pound1000 and pound6000 per order It is not possible to
know how many TEPOs or TEROs might be applied for but assuming a number half the level of
the estimated maximum number of potential convictions for trafficking offences each year (four
to eight) would give estimated costs of between pound2000 (2 x pound1000) and pound24000 (4 x pound6000)
per annum
48 There will be costs to Police Scotland in monitoring TEPOs and TEROs whether
imposed at the time of sentence or by application but this will sit alongside Police Scotlandrsquos
existing crime prevention and investigative responsibilities and is not expected to add to
manpower costs
49 In addition to the costs of imposing and monitoring TEPOs and TEROs there will be
costs associated with prosecuting a breach of a TEPO or TERO Analysis in England and Wales
indicates that breaches of equivalent Serious Crime Prevention Orders are relatively low
Assuming one breach per annum the total combined costs to the COPFS the SCS and SLAB
would be between pound8400 and pound78100 per annum (see the combined costs for either sheriff
court or High Court procedures set out in Table 3 above) Assuming a maximum sentence of
five years the costs to the SPS for additional prison places would be between pound85000 and
pound127500 per annum (ie the pound42500 average costs of a prison place times either two or three
places depending on whether offenders are released early at the halfway or two-thirds point of
their sentence)
50 It is important to remember however that the purpose of TEPOs and TEROs is to
prevent further trafficking and exploitation offences occurring A TEPO or TERO will only be
imposed where a court considers that there is a credible risk of an individual committing such a
crime Any costs associated with the imposition and breach of TEPOs and TEROs needs to be
offset against the potential costs of prosecutions If each TEPO or TERO prevents the costs of a
conviction for an offence as set out in Part 1 above the costs to the Scottish Administration
would be at least cost neutral in terms of saved court and prison places expenditure
34
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
Costs on other bodies individuals and businesses
51 There will be no costs on other bodies businesses or other individuals as a consequence
of these sections
Costs on local authorities
52 There will be no new costs on local authorities as a consequence of these sections
PART 5 - STRATEGY AND REPORTING
Ensure a strategic cross-agency approach to tackling trafficking
53 The Bill places a duty on the Scottish Ministers to prepare publish and regularly review
and update a trafficking and exploitation strategy to assist in ensuring a co-ordinated and
strategic approach to this issue The provisions place a duty on Ministers to consult with such
organisations and individuals as they consider to have a relevant interest in the issues of human
trafficking and exploitation The Bill places a duty on relevant public bodies to be named in
regulations to assist in the preparation and review of the strategy
54 The Bill will place a duty on relevant public authorities to provide anonymised data about
potential human trafficking and exploitation victims to Police Scotland
Costs on the Scottish Administration
55 Activity arising from these provisions within the Bill will build on the activity and
current resources already committed to this area of work
56 Based on similar activities the estimated additional costs to the Scottish Ministers of
preparing and reviewing a trafficking and exploitation strategy will be approximately pound25000
every three years Alongside the preparation and publication of the strategy the Scottish
Ministers would also propose to support additional awareness raising and training activity to
build on the existing awareness raising and training activity already undertaken by relevant
organisations including the NHS Police Scotland and COPFS Consideration would be given to
how best to co-ordinate these resources alongside existing expenditure and activity For the
purposes of the Financial Memorandum and based on current activity additional costs on top of
existing activity are estimated at approximately pound100000 to pound250000 per annum over the first
four years of the Bill This is based on the best estimated costs of preparing and publishing
publicity and guidance material averaged over a number of years The exact costs will depend
on decisions taken in dialogue with stakeholders as part of the preparation of the strategy
57 The Scottish Government anticipates that the costs to relevant public authorities of
providing anonymised data about potential human trafficking victims to Police Scotland will be
marginal Costs to Police Scotland of collating this data will form part of their existing
intelligence gathering activity
35
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
Costs on other bodies individuals and businesses
58 There will be some costs on other bodies individuals and businesses in engaging with the
Scottish Ministers in the preparation and publication of the Strategy For business and
individuals this will be voluntary depending on their willingness to engage For public bodies
their level of engagement will depend on the relevance of the issue of trafficking and
exploitation to their work and their potential contribution to combating this behaviour Any
additional costs are expected to fit within or sit alongside their existing responsibilities for
example with reference to promoting and ensuring equalities and the application of human
rights obligations
Costs on local authorities
59 There will be costs on local authorities associated with engaging in the preparation and
review of the trafficking and exploitation strategy and in awareness raising and training of front-
line staff The additional costs should be marginal on top of the existing guidance and activity
already in place with reference to the identification and support of potential child victims of
trafficking The aim will be to minimise costs for other front-line local authority staff by
adapting the general awareness raising and training materials described above
SUMMARY
60 The table below provides a summary of the costs of each element of the Bill as described
above
Table 7 Summary table of costs for each aspect of the Bill (pound000)
Year 1 Year 2 Year 3 Year 4
Clarifying amp
Strengthening the
Criminal Law ndash Para 28 pound20-pound353 pound190- pound693 pound360-pound900 pound360-pound1073
Ensure the rights of
victims to access and
support - Para 36 pound70-pound140 pound140-pound280 pound220-pound430 pound290-pound580
Introduce new measures to
disrupt and prevent
trafficking pound016
pound0 pound0 pound0
Ensure a strategic cross
agency approach to
tackling trafficking ndash Para
56 pound125-pound275 pound100-pound250 pound100-pound250 pound125-pound275
TOTAL pound215-pound768 pound430-pound1223 pound680-pound1580 pound775-pound1928
16
The Scottish Government considers that the overall costs are at least cost neutral ndash see paragraphs 45 to 50
36
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December
SCOTTISH GOVERNMENT STATEMENT ON LEGISLATIVE
COMPETENCE
On 11 December 2014 the Cabinet Secretary for Justice (Michael Matheson MSP) made the
following statement
―In my view the provisions of the Human Trafficking and Exploitation (Scotland) Bill
would be within the legislative competence of the Scottish Parliament
mdashmdashmdashmdashmdashmdashmdashmdashmdashmdash
PRESIDING OFFICERrsquoS STATEMENT ON LEGISLATIVE
COMPETENCE
On 11 December 2014 the Presiding Officer (Rt Hon Tricia Marwick MSP) made the following
statement
―In my view the provisions of the Human Trafficking and Exploitation (Scotland) Bill
would be within the legislative competence of the Scottish Parliament
37
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December
SP Bill 57ndashEN Session 4 (2014)
HUMAN TRAFFICKING AND EXPLOITATION
(SCOTLAND) BILL
EXPLANATORY NOTES
(AND OTHER ACCOMPANYING DOCUMENTS)
Parliamentary copyright Scottish Parliamentary Corporate Body
Information on the Scottish Parliamentrsquos copyright policy can be found on the website -
wwwscottishparliamentuk
Produced and published in Scotland on behalf of the Scottish Parliamentary Corporate Body by APS
Group Scotland
ISBN 978-1-78534-569-2
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
Table 2 Comparison of recent UK referrals to the National Referral Mechanism and the
National Crime Agency Strategic Assessment of the Scale of Human Trafficking
2012 2013 Change
Referred to NRM 778 1095 +41
NCA Assessment No of
Unique Potential Victims
Identified
2255 2744 +22
Source National Crime Agency Strategic Assessment of the Nature and Scale of Human
Trafficking in the UK4
8 For Scotland the NCA Assessment for 2013 identified 55 unique potential victims of
human trafficking compared with 99 referrals to the NRM It is not known why in contrast to
the position in England and Wales the NCA Assessment for Scotland is lower than the NRM
referrals although it will exclude potential victims who received a negative conclusive decision
and duplicate referrals However these numbers must be treated with significant caution There
remains strong conviction amongst law enforcement bodies and victims organisations that there
are more victims of trafficking than are identified and that even once identified victims are
often unwilling to engage with authorities or identify themselves as having been trafficked For
the purpose of this Financial Memorandum the Scottish Government has accepted the NCA
assessment that there are likely to be between two and three times as many potential victims of
trafficking as are currently identified through the NRM This assessment is based on the Scottish
Governmentrsquos best understanding of the hidden nature of this crime and the known reluctance of
some victims to identify their trafficked status or to engage with public authorities
Criminal justice response to human trafficking and exploitation
9 There have been relatively few prosecutions and convictions for human trafficking
offences under existing criminal justice legislationmdash
The Criminal Justice (Scotland) Act 20035 (―the 2003 Act) provides for offences of
trafficking for the purposes of exploitation by way of prostitution
The Asylum and Immigration (Treatment of Claimants etc) Act 20046 (―the 2004
Act) provides for offences of trafficking for labour and other forms of exploitation
The Criminal Justice and Licensing (Scotland) Act 20107 (―the 2010 Act) amended
and extended the 2003 and 2004 Acts and created a standalone offence of holding
someone in slavery or servitude or requiring a person to perform forced or
compulsory labour
10 The first successful convictions for human trafficking in Scotland were in 2011 under
section 22 of the 2003 Act for trafficking for the purposes of prostitution During 2013 a total of
four people were convicted of human trafficking offences - one person under section 22 of the
2003 Act and three people under section 4 of the 2004 Act for trafficking for forced marriage
4 httpwwwnationalcrimeagencygovukpublications399-nca-strategic-assessment-the-nature-and-scale-of-
human-trafficking-in-2013file 5 httpwwwlegislationgovukasp20037
6 httpwwwlegislationgovukukpga200419
7 httpwwwlegislationgovukasp201013
25
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
The average custodial sentence length for those convicted of trafficking offences was 847 days
(just under two years and four months) as well as any confiscation order imposed
11 Although the number of convictions for trafficking offences has been small police and
the Crown Office and Procurator Fiscal Service (COPFS) have confirmed that even though it is
not possible to always prove the trafficking offence where a credible suspicion exists people
suspected of involvement with trafficking can and often are prosecuted and convicted for other
crimes such as crimes associated with prostitution forced marriage immigration offences and
drugs offences etc
12 Police Scotland has established a dedicated National Human Trafficking Unit to enhance
the police response to human trafficking through awareness raising intelligence gathering
training and providing divisions with advice and specialist knowledge The COPFS has
appointed dedicated expert fiscals to prosecute human trafficking offences
Support for victims of trafficking
13 The Scottish Government currently allocates direct grant funding to non-government
organisations to provide and facilitate immediate support and assistance to the adult victims of
human trafficking This support can include immediate safe accommodation psychological
support assistance in accessing medical treatment material assistance interpretation and
translation and assistance either with repatriation or securing longer-term access to mainstream
services and support such as welfare benefits and housing The provision of support and
assistance is not conditional on the potential victim being willing to participate in the criminal
justice process Under the NRM victims of trafficking are guaranteed ―a recovery and reflection
period to recover from their experience escape the influence of those alleged to have trafficked
or exploited them and consider whether to engage with authorities The Council of Europe
Convention on Action Against Trafficking in Human Beings8 provides for a reflection period of
at least 30 days for all trafficked victims when there are reasonable grounds to believe that the
person concerned is a victim The current minimum recovery and reflection period in Scotland
and the rest of the UK is 45 days
14 In 2013-14 total grant funding of pound723000 was provided by the Scottish Government
towards the costs of ensuring immediate support and assistance for the adult victims and
potential victims of trafficking in Scotland This funding was provided through two non-
government organisationsmdash
the TARA Service which works with women aged 18 years and over across
Scotland where there are concerns that they have been trafficked for commercial
sexual exploitation and
Migrant Help a UK-wide organisation providing support and advice services to
migrants including new asylum claimants refugees EU nationals etc
15 Support for the child victims of trafficking is co-ordinated by local authorities as part of
their child protection arrangements and in line with the policy intention that children remain
8 httpwwwcoeinttdghlmonitoringtraffickingdocsconvntnCETS197_enasp
26
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
children first and that their needs should be treated accordingly The Scottish Government has
produced a toolkit for agencies working with children and young people to ensure that staff are
able to identify trafficked children and make appropriate referrals so that victims can receive
protection and support The toolkit is designed to be used in conjunction with National Child
Protection Guidance9 which was first published in 2010 and refreshed in 2014 and other
relevant national and international guidance Information about current expenditure on child
victims of trafficking is not recorded separately from information about wider expenditure on
child protection services
Lord Advocate guidance on prosecution policy
16 In his letter of 21 January 2013 to the Scottish Parliament European and External
Relations Committee10
the Lord Advocate set out the current arrangements for fiscals
considering the prosecution of a confirmed or potential victim of human trafficking where it is
believed or claimed that the crime was committed as a direct consequence of the personrsquos
trafficked status The letter set out the basis for the current Lord Advocatersquos guidance to
prosecutors including the presumption against the prosecution of a credible trafficking victim
for crimes that arise as a consequence of the victimrsquos trafficked status
Human trafficking strategic approach awareness raising and training
17 The first Scottish Human Trafficking Summit was hosted by the Cabinet Secretary for
Justice in October 2012 The summit brought together key law enforcement public private and
third sector organisations with an interest in human trafficking Following the summit a number
of strategic collaborative actions were agreed and progressed including with reference to
awareness raising and training for frontline staff data collection and analysis identification care
and support for both child and adult victims of trafficking and enhancing enforcement
18 One specific workstream related to awareness raising and training of front-line staff
likely to come into contact with trafficking victims or potential instances of trafficking
Following the summit Police Scotland with support from the Scottish Government and others
prepared published and circulated widely an awareness raising leaflet ndash Reading the Signs11
ndash to
assist police officers and staff in other front line posts in identifying the signs of potential
trafficking The Scottish Government also participated with the UK Government in a UK-wide
public awareness raising campaign about modern slavery and trafficking
19 In addition to general awareness raising specific training material was prepared for key
front-line staff For example all police officers were required to undertake an e-learning course
on human trafficking A special leaflet for health workers was prepared and circulated by NHS
Health Scotland An e-learning module for health workers about their role in identifying and
9 httpwwwscotlandgovukPublications2014053052
10httpwwwscottishparliamentukS3_EuropeanandExternalRelationsCommitteeGeneral20DocumentsLetterfro
mTheLordAdvocatepdf 11
httpwwwscotlandpoliceukassetspdf174967human-traffickingview=Standard
27
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
responding to victims of trafficking was made available through the National Gender Based
Violence and Health Programme12
IMPACT OF SPECIFIC PROVISIONS
PART 1 - OFFENCES
Single trafficking offence
20 The Bill establishes a new single offence of human trafficking for all types of
exploitation for both adults and children replacing existing separate criminal offences (see
paragraph 9 above) As noted above to date there have been relatively small numbers of
prosecutions under existing trafficking offences
21 The maximum penalty for conviction on indictment for the single trafficking offence will
be life imprisonment compared with a maximum of 14 years for the current separate offences
Although it will be for the court to decide how to sentence people convicted under the new single
offence in any given case it is likely that the availability of a higher maximum sentence will
have cost implications for the Scottish Prison Service (SPS)
Revised slavery servitude and forced labour offence
22 The Bill will also repeal and replace the existing exploitation offence within section 47 of
the 2010 Act which criminalises holding someone in slavery or servitude or requiring them to
perform compulsory or forced labour The offence will be revised and strengthened to allow the
court to consider in assessing whether a person has been a victim of an offence the victimrsquos
characteristics such as age physical or mental illness disability or where relevant family
relationships The maximum penalty for the offence will be increased from 14 years for the
current offence to life imprisonment for a conviction on indictment
Statutory aggravators
23 The Bill makes provision for statutory aggravators which apply in cases where an
accused person commits an offence connected with human trafficking and for when the offence
is committed in connection with the accusedrsquos position as a public official The court must take
the aggravation into account in determining the appropriate sentence if it is proved that the
offence is aggravated in this way The statutory aggravator is not anticipated to have any
substantial financial implications for public private or third sector bodies or for individuals
Costs on the Scottish Administration
24 Consolidating and clarifying the existing criminal law on trafficking and exploitation
alongside other measures arising from the Bill and the trafficking and exploitation strategy
including training and awareness raising and support for victims should increase the potential
for successful investigations prosecutions and convictions of human trafficking and exploitation
offences There have been six successful prosecutions for a specific trafficking offence to date in
Scotland with an average custodial sentence length of two years and four months against a
12
httpwwwgbvscotnhsuk
28
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
maximum possible sentence of 14 years The maximum number of prosecutions in any one year
was four individuals in two separate cases
25 Police and prosecutors already have in place specialist resources for investigating and
prosecuting human trafficking and exploitation offences and these provisions will not add to
these costs Law enforcement agencies have confirmed that whilst the number of prosecutions
for specific trafficking offences has been low where victims are identified but are unwilling to
testify individuals suspected of trafficking and exploitation will be prosecuted in court for other
related offences The Lord Advocate has identified that ―If we donrsquot have the evidence [to
prosecute for a specific human trafficking offence] we prosecute for fraud ID theft or asylum
and immigration offences13
26 The Scottish Government does not anticipate therefore significant additional cost
implications for law enforcement agencies or courts as cases will often proceed with a
trafficking offence alongside or in place of other related offences For the same reason the
Scottish Government does not anticipate significant additional cost on the Scottish Legal Aid
Board (SLAB) However if it is assumed that the number of successful trials proceeding in any
single year doubles from two to four there would be some additional costs on the COPFS the
Scottish Court Service (SCS) and SLAB based on the average unit costs for cases proceeded
either through Sheriff Court Solemn procedure or through the High Court These estimated costs
depending on whether cases are proceeded through the High Court or Sheriff Court solemn
procedure are illustrated in the table below
Table 3 Estimated unit costs of additional trial procedures through either High Court or
Sheriff Court solemn procedure (pound000)
Average prosecution
costs per procedure
(COPFS)
Average court costs
per procedure (SCS)
Average legal aid
costs per procedure
(SLAB)
Sheriff Court solemn
procedure (pound000) pound49 pound19 pound16
High Court (pound000) pound556 pound90 pound135
Estimated average
costs of 2 additional
trial procedures 4
accused per annum
(pound000)
pound99-pound1112 pound38-pound180 pound64-pound540
Source costs of the Criminal Justice System in Scotland Dataset (2013)14
27 There will also be costs to the SPS both through any increase in the number of successful
convictions for trafficking and exploitation offences and an anticipated increase in the average
length of custodial sentence for these crimes It is not possible to know for certain the total
13
httpwwwdailyrecordcouknewsscottish-newsonly-three-successful-prosecutions-brought-4457684 14httpwwwscotlandgovukTopicsStatisticsBrowseCrimeJusticePublicationscostcrimjustsc
otcostcrimjustdatasethttpwwwscotlandgovukTopicsStatisticsBrowseCrimeJusticePublicationscostcrimj
ustscotcostcrimjustdataset
29
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
number of future convictions or what sentencing decisions might be taken by courts in individual
cases
28 The table below illustrates the potential cost implications of either maintaining or
increasing the current maximum number of convictions in any individual year from four to eight
convictions For the purpose of the calculation it is assumed that the average custodial sentence
length for trafficking and exploitation offences will increase from two years and four months
(classified as a short-term sentence) to over four years (classified as a long-term sentence) as
increasing the maximum sentence to life imprisonment is anticipated to increase the average
sentence for a trafficking offence The estimated average annual cost of a prison place based on
SPS figures is pound42500 Taking account of the current early release arrangements for long-term
prisoners and the overlapping of individual sentences would result in an estimated increase of 8
to 21 total prison places each year after four years ndash ie with an additional four people receiving
custodial sentences each year and released by the Parole Board at the halfway point of their
sentence or automatically at the two-thirds point The total costs to the SPS will be within a
range of pound340000 to pound890000 These costs will fit within the overall budget costs to the SPS
As at 17 October 2014 there were 7731 people in custody in Scotland An additional 21 places
accounts for 03 of the total prison population
Table 4 Estimated range of costs to the Scottish Prison Service from increasing the
number and average length of successful prosecutions for trafficking offences
Year 1 Year 2 Year 3 Year 4
Additional Prison places 0-4 4-12 8-17 8-21
Additional Cost (pound000) pound0-pound170 pound170- pound510 pound340-pound720 pound340-pound890
Table 5 Estimated range of combined costs for trial procedures and prison places
Year 1 Year 2 Year 3 Year 4
Additional Cost (pound000) pound20-pound353 pound190- pound693 pound360-pound900 pound360-pound1073
Costs on other bodies individuals and businesses
29 There will be no new costs falling on other bodies individuals and businesses as a
consequence of these sections but see the section below with reference to victim support
Costs on local authorities
30 There will be no new costs falling on local authorities as a consequence of these specific
sections
PART 2 - PROTECTION OF VICTIMS
Duty on the Lord Advocate to publish guidance about the prosecution of credible trafficking and
exploitation victims who have committed offences
Costs on the Scottish Administration
31 As noted above the Lord Advocate already prepares and publishes guidance to fiscals
about the prosecution of credible victims of human trafficking for crimes committed as a direct
30
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
consequence of their trafficking status The requirement to publish such guidance would in
future be statutory However there will be no new costs on the Scottish Government or the
COPFS as a consequence of placing the requirement for the Lord Advocate to issue this
guidance on a statutory basis
Costs on other bodies individuals and businesses
32 There will be no new costs falling on other bodies individuals and businesses as a
consequence of these sections
Costs on local authorities
33 There will be no new costs falling on local authorities as a consequence of these sections
Ensure the rights of victims to access and support
34 The Bill will place a statutory duty on the Scottish Ministers to secure the provision of
relevant immediate support and recovery services for adult victims of trafficking subject to an
assessment of need The Bill will specify those victims or potential victims entitled to support
and the minimum time periods during which such services should be provided Specifically the
Bill will require Ministers to provide support and assistance based on each individualrsquos assessed
needs during the recovery and reflection period (currently 45 days) during which the
individualrsquos trafficking status is determined The Bill specifies minimum support and assistance
that should be considered as part of the assessment including access to housing treatment
interpretation services etc The Scottish Ministers have the flexibility to provide support and
assistance outwith the specified reflection and recovery period where this is considered
appropriate
35 As noted above the Scottish Ministers already provide grant funding totalling pound723000
to third sector organisations to assist identified adult potential victims of trafficking Provision of
support to adult victims will be placed on a statutory basis The number of adult potential victims
of trafficking referred through the NRM during 2013 was 77 although not all of these will have
requested assistance or received the full range of support services It is assumed that other
actions arising from the Bill including the single offence and publication of the trafficking and
exploitation strategy will result over time in an increase in identified victims and requests for
assistance and support
Costs on the Scottish Administration
36 The Scottish Government anticipates that improved awareness raising and training of
front-line staff will result in an increase in the number of victims identified over time It is not
possible to know how quickly this improvement will be achieved However between 2012 and
2013 the number of potential identified victims across the UK identified through the NCA
strategic assessment and NRM increased by 22 and 41 respectively Given the need for
awareness raising and training to impact the Scottish Government does not anticipate a similar
scale of increase in the immediate term but the Government considers it reasonable to anticipate
a possible increase of between 10 and 20 per annum in the overall number of requests for
assistance and support each year over the next four years Assuming a similar mix of needs as
31
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
current victims the increased costs to the Scottish Government on top of existing funding
would range between pound290000 to pound580000 per annum by year four
Table 6 Estimated range of costs increases for victim support and assistance (pound000)
Year 1 Year 2 Year 3 Year 4
Additional Cost (pound000) pound0-pound140 pound140-pound280 pound220-pound430 pound290-pound580
Costs on other bodies individuals and businesses
37 There will be no additional costs on other public bodies individuals or businesses
associated with these specific provisions There will be no direct additional costs falling on third
sector organisations as a consequence of the specific provisions It is likely however that all or
part of the additional funding identified above will be directed by the Scottish Government
through relevant third sector organisations with the expertise to provide immediate support and
protection to victims
Costs on local authorities
38 The Bill creates no new legislative requirements for the delivery of childrenrsquos services
recognising that this already exists It is therefore not anticipated that the Bill will result in any
quantifiable additional costs on local authorities or other public bodies as a result of support for
child victims Child victims of trafficking are supported as part of the Getting It Right for Every
Child (GIRFEC) approach any child whether identified as trafficked or not will be assessed on
the basis of its needs It is anticipated that as a consequence of the strategy (for which the Bill
provides) that more children may be identified as trafficked It is noted however that various
reports including most recently the UK Governmentrsquos NRM Review Report15
have found that
children who are already receiving support from relevant authorities in the UK are often not
identified as trafficked victims because of lack of awareness of the referral process It may be
that actions arising from the development of the strategy and dialogue with stakeholders will
give rise to additional activity or costs with reference to child victims of trafficking but these are
not known and cannot be estimated at this time
PART 3 - CONFISCATION OF PROPERTY
39 The Bill will provide police with powers to detain the property such as cars boats etc of
a person arrested for a trafficking offence This power will be exercised at the time of arrest and
is not expected to impose any additional costs on the police or others
Costs on the Scottish Administration
40 There will be no additional costs on the Scottish Government as a result of these
provisions Individuals can apply to the court to have vehicles ships or aircraft released from
detention This will be considered as part of the overall case and will not add to the costs to the
criminal justice system
15
httpsnrmhomeofficegovuk
32
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
Costs on other bodies individuals and businesses
41 There will be no additional costs on other public bodies individuals or businesses
including Police Scotland as a result of these specific provisions
Costs on local authorities
42 There will be no additional costs on local authorities as a result of these specific
provisions
PART 4 - TRAFFICKING AND EXPLOITATION PREVENTION AND RISK ORDERS
Introduce new measures to disrupt and prevent trafficking and exploitation
43 The Bill will introduce two new civil orders and associated interim orders to assist in
preventing trafficking and exploitation Trafficking and Exploitation Prevention Orders (TEPOs)
and Trafficking and Exploitation Risk Orders (TEROs) Where an individual has been convicted
of a trafficking or exploitation offence or an offence with a statutory trafficking aggravator a
TEPO may be imposed by a court where there is a risk that that individual may commit a further
human trafficking offence and it is necessary to make the order to protect people from the
physical or psychological harm which might occur if such an offence were committed The
TEPO will prevent the individual from engaging in activities described in the order Where a
person has not been convicted of a trafficking or exploitation offence but a court considers that
the person presents a significant risk of harm to others through the individual committing a
trafficking or exploitation offence the court can impose a TERO restricting specific activities or
imposing requirements These orders will be civil but breach of an order will constitute a
criminal offence with a maximum penalty of five years in prison available to the court
44 The Bill will categorise the trafficking and exploitation offences as lifestyle offences in
order to automatically trigger provisions within the Proceeds of Crime Act 2002 (―the 2002
Act) The definition of an offence as a ―lifestyle offence allows for proceedings under the
2002 Act to confiscate assets or monies from the individual convicted of the offence
Costs on the Scottish Administration
45 The purpose of TEPOs and TEROs is to prevent criminal activity associated with
trafficking and exploitation from arising There will be some cost implications for law
enforcement organisations which will need to monitor the terms of any order imposed by the
courts However these will be offset by the savings made from being able to intervene at an
early stage of criminality if an order has been breached For the equivalent civil orders within the
UK Modern Slavery Bill the UK Government has estimated potential net savings of between
pound130000 and pound1090000 per annum The Scottish Government has not incorporated any
savings for the purpose of Scottish legislation but expects the costs of implementing TEPOs and
TEROs and detention powers to be at least cost neutral for the Scottish Administration and other
public bodies
33
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
46 The Bill will give courts powers to impose a TEPO at the time of sentencing There will
be no immediate additional costs for the courts or COPFS associated with TEPOs imposed as
part of sentencing The Chief Constable of Police Scotland will also be able to apply to the court
for a TEPO to be imposed on a relevant offender previously convicted of a trafficking offence
There will be costs to Police Scotland in making the application and to the SCS and to SLAB in
considering the application As there have been only six previous convictions for trafficking
offences in Scotland the Scottish Government expects the number of applications for TEPOs for
previous convictions to be small one-off and will not add to the overall costs of the criminal
justice system The Chief Constable of Police Scotland can also apply to the court for a TERO
against an individual where it is considered that that individual is likely to commit a trafficking
offence
47 Looking at the equivalent costs for similar civil orders eg Sexual Offences Prevention
Orders the total costs to the SCS the COPFS and SLAB of applying for a TERO or post-
sentencing TEPO are estimated at between pound1000 and pound6000 per order It is not possible to
know how many TEPOs or TEROs might be applied for but assuming a number half the level of
the estimated maximum number of potential convictions for trafficking offences each year (four
to eight) would give estimated costs of between pound2000 (2 x pound1000) and pound24000 (4 x pound6000)
per annum
48 There will be costs to Police Scotland in monitoring TEPOs and TEROs whether
imposed at the time of sentence or by application but this will sit alongside Police Scotlandrsquos
existing crime prevention and investigative responsibilities and is not expected to add to
manpower costs
49 In addition to the costs of imposing and monitoring TEPOs and TEROs there will be
costs associated with prosecuting a breach of a TEPO or TERO Analysis in England and Wales
indicates that breaches of equivalent Serious Crime Prevention Orders are relatively low
Assuming one breach per annum the total combined costs to the COPFS the SCS and SLAB
would be between pound8400 and pound78100 per annum (see the combined costs for either sheriff
court or High Court procedures set out in Table 3 above) Assuming a maximum sentence of
five years the costs to the SPS for additional prison places would be between pound85000 and
pound127500 per annum (ie the pound42500 average costs of a prison place times either two or three
places depending on whether offenders are released early at the halfway or two-thirds point of
their sentence)
50 It is important to remember however that the purpose of TEPOs and TEROs is to
prevent further trafficking and exploitation offences occurring A TEPO or TERO will only be
imposed where a court considers that there is a credible risk of an individual committing such a
crime Any costs associated with the imposition and breach of TEPOs and TEROs needs to be
offset against the potential costs of prosecutions If each TEPO or TERO prevents the costs of a
conviction for an offence as set out in Part 1 above the costs to the Scottish Administration
would be at least cost neutral in terms of saved court and prison places expenditure
34
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
Costs on other bodies individuals and businesses
51 There will be no costs on other bodies businesses or other individuals as a consequence
of these sections
Costs on local authorities
52 There will be no new costs on local authorities as a consequence of these sections
PART 5 - STRATEGY AND REPORTING
Ensure a strategic cross-agency approach to tackling trafficking
53 The Bill places a duty on the Scottish Ministers to prepare publish and regularly review
and update a trafficking and exploitation strategy to assist in ensuring a co-ordinated and
strategic approach to this issue The provisions place a duty on Ministers to consult with such
organisations and individuals as they consider to have a relevant interest in the issues of human
trafficking and exploitation The Bill places a duty on relevant public bodies to be named in
regulations to assist in the preparation and review of the strategy
54 The Bill will place a duty on relevant public authorities to provide anonymised data about
potential human trafficking and exploitation victims to Police Scotland
Costs on the Scottish Administration
55 Activity arising from these provisions within the Bill will build on the activity and
current resources already committed to this area of work
56 Based on similar activities the estimated additional costs to the Scottish Ministers of
preparing and reviewing a trafficking and exploitation strategy will be approximately pound25000
every three years Alongside the preparation and publication of the strategy the Scottish
Ministers would also propose to support additional awareness raising and training activity to
build on the existing awareness raising and training activity already undertaken by relevant
organisations including the NHS Police Scotland and COPFS Consideration would be given to
how best to co-ordinate these resources alongside existing expenditure and activity For the
purposes of the Financial Memorandum and based on current activity additional costs on top of
existing activity are estimated at approximately pound100000 to pound250000 per annum over the first
four years of the Bill This is based on the best estimated costs of preparing and publishing
publicity and guidance material averaged over a number of years The exact costs will depend
on decisions taken in dialogue with stakeholders as part of the preparation of the strategy
57 The Scottish Government anticipates that the costs to relevant public authorities of
providing anonymised data about potential human trafficking victims to Police Scotland will be
marginal Costs to Police Scotland of collating this data will form part of their existing
intelligence gathering activity
35
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
Costs on other bodies individuals and businesses
58 There will be some costs on other bodies individuals and businesses in engaging with the
Scottish Ministers in the preparation and publication of the Strategy For business and
individuals this will be voluntary depending on their willingness to engage For public bodies
their level of engagement will depend on the relevance of the issue of trafficking and
exploitation to their work and their potential contribution to combating this behaviour Any
additional costs are expected to fit within or sit alongside their existing responsibilities for
example with reference to promoting and ensuring equalities and the application of human
rights obligations
Costs on local authorities
59 There will be costs on local authorities associated with engaging in the preparation and
review of the trafficking and exploitation strategy and in awareness raising and training of front-
line staff The additional costs should be marginal on top of the existing guidance and activity
already in place with reference to the identification and support of potential child victims of
trafficking The aim will be to minimise costs for other front-line local authority staff by
adapting the general awareness raising and training materials described above
SUMMARY
60 The table below provides a summary of the costs of each element of the Bill as described
above
Table 7 Summary table of costs for each aspect of the Bill (pound000)
Year 1 Year 2 Year 3 Year 4
Clarifying amp
Strengthening the
Criminal Law ndash Para 28 pound20-pound353 pound190- pound693 pound360-pound900 pound360-pound1073
Ensure the rights of
victims to access and
support - Para 36 pound70-pound140 pound140-pound280 pound220-pound430 pound290-pound580
Introduce new measures to
disrupt and prevent
trafficking pound016
pound0 pound0 pound0
Ensure a strategic cross
agency approach to
tackling trafficking ndash Para
56 pound125-pound275 pound100-pound250 pound100-pound250 pound125-pound275
TOTAL pound215-pound768 pound430-pound1223 pound680-pound1580 pound775-pound1928
16
The Scottish Government considers that the overall costs are at least cost neutral ndash see paragraphs 45 to 50
36
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December
SCOTTISH GOVERNMENT STATEMENT ON LEGISLATIVE
COMPETENCE
On 11 December 2014 the Cabinet Secretary for Justice (Michael Matheson MSP) made the
following statement
―In my view the provisions of the Human Trafficking and Exploitation (Scotland) Bill
would be within the legislative competence of the Scottish Parliament
mdashmdashmdashmdashmdashmdashmdashmdashmdashmdash
PRESIDING OFFICERrsquoS STATEMENT ON LEGISLATIVE
COMPETENCE
On 11 December 2014 the Presiding Officer (Rt Hon Tricia Marwick MSP) made the following
statement
―In my view the provisions of the Human Trafficking and Exploitation (Scotland) Bill
would be within the legislative competence of the Scottish Parliament
37
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December
SP Bill 57ndashEN Session 4 (2014)
HUMAN TRAFFICKING AND EXPLOITATION
(SCOTLAND) BILL
EXPLANATORY NOTES
(AND OTHER ACCOMPANYING DOCUMENTS)
Parliamentary copyright Scottish Parliamentary Corporate Body
Information on the Scottish Parliamentrsquos copyright policy can be found on the website -
wwwscottishparliamentuk
Produced and published in Scotland on behalf of the Scottish Parliamentary Corporate Body by APS
Group Scotland
ISBN 978-1-78534-569-2
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
The average custodial sentence length for those convicted of trafficking offences was 847 days
(just under two years and four months) as well as any confiscation order imposed
11 Although the number of convictions for trafficking offences has been small police and
the Crown Office and Procurator Fiscal Service (COPFS) have confirmed that even though it is
not possible to always prove the trafficking offence where a credible suspicion exists people
suspected of involvement with trafficking can and often are prosecuted and convicted for other
crimes such as crimes associated with prostitution forced marriage immigration offences and
drugs offences etc
12 Police Scotland has established a dedicated National Human Trafficking Unit to enhance
the police response to human trafficking through awareness raising intelligence gathering
training and providing divisions with advice and specialist knowledge The COPFS has
appointed dedicated expert fiscals to prosecute human trafficking offences
Support for victims of trafficking
13 The Scottish Government currently allocates direct grant funding to non-government
organisations to provide and facilitate immediate support and assistance to the adult victims of
human trafficking This support can include immediate safe accommodation psychological
support assistance in accessing medical treatment material assistance interpretation and
translation and assistance either with repatriation or securing longer-term access to mainstream
services and support such as welfare benefits and housing The provision of support and
assistance is not conditional on the potential victim being willing to participate in the criminal
justice process Under the NRM victims of trafficking are guaranteed ―a recovery and reflection
period to recover from their experience escape the influence of those alleged to have trafficked
or exploited them and consider whether to engage with authorities The Council of Europe
Convention on Action Against Trafficking in Human Beings8 provides for a reflection period of
at least 30 days for all trafficked victims when there are reasonable grounds to believe that the
person concerned is a victim The current minimum recovery and reflection period in Scotland
and the rest of the UK is 45 days
14 In 2013-14 total grant funding of pound723000 was provided by the Scottish Government
towards the costs of ensuring immediate support and assistance for the adult victims and
potential victims of trafficking in Scotland This funding was provided through two non-
government organisationsmdash
the TARA Service which works with women aged 18 years and over across
Scotland where there are concerns that they have been trafficked for commercial
sexual exploitation and
Migrant Help a UK-wide organisation providing support and advice services to
migrants including new asylum claimants refugees EU nationals etc
15 Support for the child victims of trafficking is co-ordinated by local authorities as part of
their child protection arrangements and in line with the policy intention that children remain
8 httpwwwcoeinttdghlmonitoringtraffickingdocsconvntnCETS197_enasp
26
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
children first and that their needs should be treated accordingly The Scottish Government has
produced a toolkit for agencies working with children and young people to ensure that staff are
able to identify trafficked children and make appropriate referrals so that victims can receive
protection and support The toolkit is designed to be used in conjunction with National Child
Protection Guidance9 which was first published in 2010 and refreshed in 2014 and other
relevant national and international guidance Information about current expenditure on child
victims of trafficking is not recorded separately from information about wider expenditure on
child protection services
Lord Advocate guidance on prosecution policy
16 In his letter of 21 January 2013 to the Scottish Parliament European and External
Relations Committee10
the Lord Advocate set out the current arrangements for fiscals
considering the prosecution of a confirmed or potential victim of human trafficking where it is
believed or claimed that the crime was committed as a direct consequence of the personrsquos
trafficked status The letter set out the basis for the current Lord Advocatersquos guidance to
prosecutors including the presumption against the prosecution of a credible trafficking victim
for crimes that arise as a consequence of the victimrsquos trafficked status
Human trafficking strategic approach awareness raising and training
17 The first Scottish Human Trafficking Summit was hosted by the Cabinet Secretary for
Justice in October 2012 The summit brought together key law enforcement public private and
third sector organisations with an interest in human trafficking Following the summit a number
of strategic collaborative actions were agreed and progressed including with reference to
awareness raising and training for frontline staff data collection and analysis identification care
and support for both child and adult victims of trafficking and enhancing enforcement
18 One specific workstream related to awareness raising and training of front-line staff
likely to come into contact with trafficking victims or potential instances of trafficking
Following the summit Police Scotland with support from the Scottish Government and others
prepared published and circulated widely an awareness raising leaflet ndash Reading the Signs11
ndash to
assist police officers and staff in other front line posts in identifying the signs of potential
trafficking The Scottish Government also participated with the UK Government in a UK-wide
public awareness raising campaign about modern slavery and trafficking
19 In addition to general awareness raising specific training material was prepared for key
front-line staff For example all police officers were required to undertake an e-learning course
on human trafficking A special leaflet for health workers was prepared and circulated by NHS
Health Scotland An e-learning module for health workers about their role in identifying and
9 httpwwwscotlandgovukPublications2014053052
10httpwwwscottishparliamentukS3_EuropeanandExternalRelationsCommitteeGeneral20DocumentsLetterfro
mTheLordAdvocatepdf 11
httpwwwscotlandpoliceukassetspdf174967human-traffickingview=Standard
27
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
responding to victims of trafficking was made available through the National Gender Based
Violence and Health Programme12
IMPACT OF SPECIFIC PROVISIONS
PART 1 - OFFENCES
Single trafficking offence
20 The Bill establishes a new single offence of human trafficking for all types of
exploitation for both adults and children replacing existing separate criminal offences (see
paragraph 9 above) As noted above to date there have been relatively small numbers of
prosecutions under existing trafficking offences
21 The maximum penalty for conviction on indictment for the single trafficking offence will
be life imprisonment compared with a maximum of 14 years for the current separate offences
Although it will be for the court to decide how to sentence people convicted under the new single
offence in any given case it is likely that the availability of a higher maximum sentence will
have cost implications for the Scottish Prison Service (SPS)
Revised slavery servitude and forced labour offence
22 The Bill will also repeal and replace the existing exploitation offence within section 47 of
the 2010 Act which criminalises holding someone in slavery or servitude or requiring them to
perform compulsory or forced labour The offence will be revised and strengthened to allow the
court to consider in assessing whether a person has been a victim of an offence the victimrsquos
characteristics such as age physical or mental illness disability or where relevant family
relationships The maximum penalty for the offence will be increased from 14 years for the
current offence to life imprisonment for a conviction on indictment
Statutory aggravators
23 The Bill makes provision for statutory aggravators which apply in cases where an
accused person commits an offence connected with human trafficking and for when the offence
is committed in connection with the accusedrsquos position as a public official The court must take
the aggravation into account in determining the appropriate sentence if it is proved that the
offence is aggravated in this way The statutory aggravator is not anticipated to have any
substantial financial implications for public private or third sector bodies or for individuals
Costs on the Scottish Administration
24 Consolidating and clarifying the existing criminal law on trafficking and exploitation
alongside other measures arising from the Bill and the trafficking and exploitation strategy
including training and awareness raising and support for victims should increase the potential
for successful investigations prosecutions and convictions of human trafficking and exploitation
offences There have been six successful prosecutions for a specific trafficking offence to date in
Scotland with an average custodial sentence length of two years and four months against a
12
httpwwwgbvscotnhsuk
28
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
maximum possible sentence of 14 years The maximum number of prosecutions in any one year
was four individuals in two separate cases
25 Police and prosecutors already have in place specialist resources for investigating and
prosecuting human trafficking and exploitation offences and these provisions will not add to
these costs Law enforcement agencies have confirmed that whilst the number of prosecutions
for specific trafficking offences has been low where victims are identified but are unwilling to
testify individuals suspected of trafficking and exploitation will be prosecuted in court for other
related offences The Lord Advocate has identified that ―If we donrsquot have the evidence [to
prosecute for a specific human trafficking offence] we prosecute for fraud ID theft or asylum
and immigration offences13
26 The Scottish Government does not anticipate therefore significant additional cost
implications for law enforcement agencies or courts as cases will often proceed with a
trafficking offence alongside or in place of other related offences For the same reason the
Scottish Government does not anticipate significant additional cost on the Scottish Legal Aid
Board (SLAB) However if it is assumed that the number of successful trials proceeding in any
single year doubles from two to four there would be some additional costs on the COPFS the
Scottish Court Service (SCS) and SLAB based on the average unit costs for cases proceeded
either through Sheriff Court Solemn procedure or through the High Court These estimated costs
depending on whether cases are proceeded through the High Court or Sheriff Court solemn
procedure are illustrated in the table below
Table 3 Estimated unit costs of additional trial procedures through either High Court or
Sheriff Court solemn procedure (pound000)
Average prosecution
costs per procedure
(COPFS)
Average court costs
per procedure (SCS)
Average legal aid
costs per procedure
(SLAB)
Sheriff Court solemn
procedure (pound000) pound49 pound19 pound16
High Court (pound000) pound556 pound90 pound135
Estimated average
costs of 2 additional
trial procedures 4
accused per annum
(pound000)
pound99-pound1112 pound38-pound180 pound64-pound540
Source costs of the Criminal Justice System in Scotland Dataset (2013)14
27 There will also be costs to the SPS both through any increase in the number of successful
convictions for trafficking and exploitation offences and an anticipated increase in the average
length of custodial sentence for these crimes It is not possible to know for certain the total
13
httpwwwdailyrecordcouknewsscottish-newsonly-three-successful-prosecutions-brought-4457684 14httpwwwscotlandgovukTopicsStatisticsBrowseCrimeJusticePublicationscostcrimjustsc
otcostcrimjustdatasethttpwwwscotlandgovukTopicsStatisticsBrowseCrimeJusticePublicationscostcrimj
ustscotcostcrimjustdataset
29
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
number of future convictions or what sentencing decisions might be taken by courts in individual
cases
28 The table below illustrates the potential cost implications of either maintaining or
increasing the current maximum number of convictions in any individual year from four to eight
convictions For the purpose of the calculation it is assumed that the average custodial sentence
length for trafficking and exploitation offences will increase from two years and four months
(classified as a short-term sentence) to over four years (classified as a long-term sentence) as
increasing the maximum sentence to life imprisonment is anticipated to increase the average
sentence for a trafficking offence The estimated average annual cost of a prison place based on
SPS figures is pound42500 Taking account of the current early release arrangements for long-term
prisoners and the overlapping of individual sentences would result in an estimated increase of 8
to 21 total prison places each year after four years ndash ie with an additional four people receiving
custodial sentences each year and released by the Parole Board at the halfway point of their
sentence or automatically at the two-thirds point The total costs to the SPS will be within a
range of pound340000 to pound890000 These costs will fit within the overall budget costs to the SPS
As at 17 October 2014 there were 7731 people in custody in Scotland An additional 21 places
accounts for 03 of the total prison population
Table 4 Estimated range of costs to the Scottish Prison Service from increasing the
number and average length of successful prosecutions for trafficking offences
Year 1 Year 2 Year 3 Year 4
Additional Prison places 0-4 4-12 8-17 8-21
Additional Cost (pound000) pound0-pound170 pound170- pound510 pound340-pound720 pound340-pound890
Table 5 Estimated range of combined costs for trial procedures and prison places
Year 1 Year 2 Year 3 Year 4
Additional Cost (pound000) pound20-pound353 pound190- pound693 pound360-pound900 pound360-pound1073
Costs on other bodies individuals and businesses
29 There will be no new costs falling on other bodies individuals and businesses as a
consequence of these sections but see the section below with reference to victim support
Costs on local authorities
30 There will be no new costs falling on local authorities as a consequence of these specific
sections
PART 2 - PROTECTION OF VICTIMS
Duty on the Lord Advocate to publish guidance about the prosecution of credible trafficking and
exploitation victims who have committed offences
Costs on the Scottish Administration
31 As noted above the Lord Advocate already prepares and publishes guidance to fiscals
about the prosecution of credible victims of human trafficking for crimes committed as a direct
30
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
consequence of their trafficking status The requirement to publish such guidance would in
future be statutory However there will be no new costs on the Scottish Government or the
COPFS as a consequence of placing the requirement for the Lord Advocate to issue this
guidance on a statutory basis
Costs on other bodies individuals and businesses
32 There will be no new costs falling on other bodies individuals and businesses as a
consequence of these sections
Costs on local authorities
33 There will be no new costs falling on local authorities as a consequence of these sections
Ensure the rights of victims to access and support
34 The Bill will place a statutory duty on the Scottish Ministers to secure the provision of
relevant immediate support and recovery services for adult victims of trafficking subject to an
assessment of need The Bill will specify those victims or potential victims entitled to support
and the minimum time periods during which such services should be provided Specifically the
Bill will require Ministers to provide support and assistance based on each individualrsquos assessed
needs during the recovery and reflection period (currently 45 days) during which the
individualrsquos trafficking status is determined The Bill specifies minimum support and assistance
that should be considered as part of the assessment including access to housing treatment
interpretation services etc The Scottish Ministers have the flexibility to provide support and
assistance outwith the specified reflection and recovery period where this is considered
appropriate
35 As noted above the Scottish Ministers already provide grant funding totalling pound723000
to third sector organisations to assist identified adult potential victims of trafficking Provision of
support to adult victims will be placed on a statutory basis The number of adult potential victims
of trafficking referred through the NRM during 2013 was 77 although not all of these will have
requested assistance or received the full range of support services It is assumed that other
actions arising from the Bill including the single offence and publication of the trafficking and
exploitation strategy will result over time in an increase in identified victims and requests for
assistance and support
Costs on the Scottish Administration
36 The Scottish Government anticipates that improved awareness raising and training of
front-line staff will result in an increase in the number of victims identified over time It is not
possible to know how quickly this improvement will be achieved However between 2012 and
2013 the number of potential identified victims across the UK identified through the NCA
strategic assessment and NRM increased by 22 and 41 respectively Given the need for
awareness raising and training to impact the Scottish Government does not anticipate a similar
scale of increase in the immediate term but the Government considers it reasonable to anticipate
a possible increase of between 10 and 20 per annum in the overall number of requests for
assistance and support each year over the next four years Assuming a similar mix of needs as
31
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
current victims the increased costs to the Scottish Government on top of existing funding
would range between pound290000 to pound580000 per annum by year four
Table 6 Estimated range of costs increases for victim support and assistance (pound000)
Year 1 Year 2 Year 3 Year 4
Additional Cost (pound000) pound0-pound140 pound140-pound280 pound220-pound430 pound290-pound580
Costs on other bodies individuals and businesses
37 There will be no additional costs on other public bodies individuals or businesses
associated with these specific provisions There will be no direct additional costs falling on third
sector organisations as a consequence of the specific provisions It is likely however that all or
part of the additional funding identified above will be directed by the Scottish Government
through relevant third sector organisations with the expertise to provide immediate support and
protection to victims
Costs on local authorities
38 The Bill creates no new legislative requirements for the delivery of childrenrsquos services
recognising that this already exists It is therefore not anticipated that the Bill will result in any
quantifiable additional costs on local authorities or other public bodies as a result of support for
child victims Child victims of trafficking are supported as part of the Getting It Right for Every
Child (GIRFEC) approach any child whether identified as trafficked or not will be assessed on
the basis of its needs It is anticipated that as a consequence of the strategy (for which the Bill
provides) that more children may be identified as trafficked It is noted however that various
reports including most recently the UK Governmentrsquos NRM Review Report15
have found that
children who are already receiving support from relevant authorities in the UK are often not
identified as trafficked victims because of lack of awareness of the referral process It may be
that actions arising from the development of the strategy and dialogue with stakeholders will
give rise to additional activity or costs with reference to child victims of trafficking but these are
not known and cannot be estimated at this time
PART 3 - CONFISCATION OF PROPERTY
39 The Bill will provide police with powers to detain the property such as cars boats etc of
a person arrested for a trafficking offence This power will be exercised at the time of arrest and
is not expected to impose any additional costs on the police or others
Costs on the Scottish Administration
40 There will be no additional costs on the Scottish Government as a result of these
provisions Individuals can apply to the court to have vehicles ships or aircraft released from
detention This will be considered as part of the overall case and will not add to the costs to the
criminal justice system
15
httpsnrmhomeofficegovuk
32
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
Costs on other bodies individuals and businesses
41 There will be no additional costs on other public bodies individuals or businesses
including Police Scotland as a result of these specific provisions
Costs on local authorities
42 There will be no additional costs on local authorities as a result of these specific
provisions
PART 4 - TRAFFICKING AND EXPLOITATION PREVENTION AND RISK ORDERS
Introduce new measures to disrupt and prevent trafficking and exploitation
43 The Bill will introduce two new civil orders and associated interim orders to assist in
preventing trafficking and exploitation Trafficking and Exploitation Prevention Orders (TEPOs)
and Trafficking and Exploitation Risk Orders (TEROs) Where an individual has been convicted
of a trafficking or exploitation offence or an offence with a statutory trafficking aggravator a
TEPO may be imposed by a court where there is a risk that that individual may commit a further
human trafficking offence and it is necessary to make the order to protect people from the
physical or psychological harm which might occur if such an offence were committed The
TEPO will prevent the individual from engaging in activities described in the order Where a
person has not been convicted of a trafficking or exploitation offence but a court considers that
the person presents a significant risk of harm to others through the individual committing a
trafficking or exploitation offence the court can impose a TERO restricting specific activities or
imposing requirements These orders will be civil but breach of an order will constitute a
criminal offence with a maximum penalty of five years in prison available to the court
44 The Bill will categorise the trafficking and exploitation offences as lifestyle offences in
order to automatically trigger provisions within the Proceeds of Crime Act 2002 (―the 2002
Act) The definition of an offence as a ―lifestyle offence allows for proceedings under the
2002 Act to confiscate assets or monies from the individual convicted of the offence
Costs on the Scottish Administration
45 The purpose of TEPOs and TEROs is to prevent criminal activity associated with
trafficking and exploitation from arising There will be some cost implications for law
enforcement organisations which will need to monitor the terms of any order imposed by the
courts However these will be offset by the savings made from being able to intervene at an
early stage of criminality if an order has been breached For the equivalent civil orders within the
UK Modern Slavery Bill the UK Government has estimated potential net savings of between
pound130000 and pound1090000 per annum The Scottish Government has not incorporated any
savings for the purpose of Scottish legislation but expects the costs of implementing TEPOs and
TEROs and detention powers to be at least cost neutral for the Scottish Administration and other
public bodies
33
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
46 The Bill will give courts powers to impose a TEPO at the time of sentencing There will
be no immediate additional costs for the courts or COPFS associated with TEPOs imposed as
part of sentencing The Chief Constable of Police Scotland will also be able to apply to the court
for a TEPO to be imposed on a relevant offender previously convicted of a trafficking offence
There will be costs to Police Scotland in making the application and to the SCS and to SLAB in
considering the application As there have been only six previous convictions for trafficking
offences in Scotland the Scottish Government expects the number of applications for TEPOs for
previous convictions to be small one-off and will not add to the overall costs of the criminal
justice system The Chief Constable of Police Scotland can also apply to the court for a TERO
against an individual where it is considered that that individual is likely to commit a trafficking
offence
47 Looking at the equivalent costs for similar civil orders eg Sexual Offences Prevention
Orders the total costs to the SCS the COPFS and SLAB of applying for a TERO or post-
sentencing TEPO are estimated at between pound1000 and pound6000 per order It is not possible to
know how many TEPOs or TEROs might be applied for but assuming a number half the level of
the estimated maximum number of potential convictions for trafficking offences each year (four
to eight) would give estimated costs of between pound2000 (2 x pound1000) and pound24000 (4 x pound6000)
per annum
48 There will be costs to Police Scotland in monitoring TEPOs and TEROs whether
imposed at the time of sentence or by application but this will sit alongside Police Scotlandrsquos
existing crime prevention and investigative responsibilities and is not expected to add to
manpower costs
49 In addition to the costs of imposing and monitoring TEPOs and TEROs there will be
costs associated with prosecuting a breach of a TEPO or TERO Analysis in England and Wales
indicates that breaches of equivalent Serious Crime Prevention Orders are relatively low
Assuming one breach per annum the total combined costs to the COPFS the SCS and SLAB
would be between pound8400 and pound78100 per annum (see the combined costs for either sheriff
court or High Court procedures set out in Table 3 above) Assuming a maximum sentence of
five years the costs to the SPS for additional prison places would be between pound85000 and
pound127500 per annum (ie the pound42500 average costs of a prison place times either two or three
places depending on whether offenders are released early at the halfway or two-thirds point of
their sentence)
50 It is important to remember however that the purpose of TEPOs and TEROs is to
prevent further trafficking and exploitation offences occurring A TEPO or TERO will only be
imposed where a court considers that there is a credible risk of an individual committing such a
crime Any costs associated with the imposition and breach of TEPOs and TEROs needs to be
offset against the potential costs of prosecutions If each TEPO or TERO prevents the costs of a
conviction for an offence as set out in Part 1 above the costs to the Scottish Administration
would be at least cost neutral in terms of saved court and prison places expenditure
34
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
Costs on other bodies individuals and businesses
51 There will be no costs on other bodies businesses or other individuals as a consequence
of these sections
Costs on local authorities
52 There will be no new costs on local authorities as a consequence of these sections
PART 5 - STRATEGY AND REPORTING
Ensure a strategic cross-agency approach to tackling trafficking
53 The Bill places a duty on the Scottish Ministers to prepare publish and regularly review
and update a trafficking and exploitation strategy to assist in ensuring a co-ordinated and
strategic approach to this issue The provisions place a duty on Ministers to consult with such
organisations and individuals as they consider to have a relevant interest in the issues of human
trafficking and exploitation The Bill places a duty on relevant public bodies to be named in
regulations to assist in the preparation and review of the strategy
54 The Bill will place a duty on relevant public authorities to provide anonymised data about
potential human trafficking and exploitation victims to Police Scotland
Costs on the Scottish Administration
55 Activity arising from these provisions within the Bill will build on the activity and
current resources already committed to this area of work
56 Based on similar activities the estimated additional costs to the Scottish Ministers of
preparing and reviewing a trafficking and exploitation strategy will be approximately pound25000
every three years Alongside the preparation and publication of the strategy the Scottish
Ministers would also propose to support additional awareness raising and training activity to
build on the existing awareness raising and training activity already undertaken by relevant
organisations including the NHS Police Scotland and COPFS Consideration would be given to
how best to co-ordinate these resources alongside existing expenditure and activity For the
purposes of the Financial Memorandum and based on current activity additional costs on top of
existing activity are estimated at approximately pound100000 to pound250000 per annum over the first
four years of the Bill This is based on the best estimated costs of preparing and publishing
publicity and guidance material averaged over a number of years The exact costs will depend
on decisions taken in dialogue with stakeholders as part of the preparation of the strategy
57 The Scottish Government anticipates that the costs to relevant public authorities of
providing anonymised data about potential human trafficking victims to Police Scotland will be
marginal Costs to Police Scotland of collating this data will form part of their existing
intelligence gathering activity
35
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
Costs on other bodies individuals and businesses
58 There will be some costs on other bodies individuals and businesses in engaging with the
Scottish Ministers in the preparation and publication of the Strategy For business and
individuals this will be voluntary depending on their willingness to engage For public bodies
their level of engagement will depend on the relevance of the issue of trafficking and
exploitation to their work and their potential contribution to combating this behaviour Any
additional costs are expected to fit within or sit alongside their existing responsibilities for
example with reference to promoting and ensuring equalities and the application of human
rights obligations
Costs on local authorities
59 There will be costs on local authorities associated with engaging in the preparation and
review of the trafficking and exploitation strategy and in awareness raising and training of front-
line staff The additional costs should be marginal on top of the existing guidance and activity
already in place with reference to the identification and support of potential child victims of
trafficking The aim will be to minimise costs for other front-line local authority staff by
adapting the general awareness raising and training materials described above
SUMMARY
60 The table below provides a summary of the costs of each element of the Bill as described
above
Table 7 Summary table of costs for each aspect of the Bill (pound000)
Year 1 Year 2 Year 3 Year 4
Clarifying amp
Strengthening the
Criminal Law ndash Para 28 pound20-pound353 pound190- pound693 pound360-pound900 pound360-pound1073
Ensure the rights of
victims to access and
support - Para 36 pound70-pound140 pound140-pound280 pound220-pound430 pound290-pound580
Introduce new measures to
disrupt and prevent
trafficking pound016
pound0 pound0 pound0
Ensure a strategic cross
agency approach to
tackling trafficking ndash Para
56 pound125-pound275 pound100-pound250 pound100-pound250 pound125-pound275
TOTAL pound215-pound768 pound430-pound1223 pound680-pound1580 pound775-pound1928
16
The Scottish Government considers that the overall costs are at least cost neutral ndash see paragraphs 45 to 50
36
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December
SCOTTISH GOVERNMENT STATEMENT ON LEGISLATIVE
COMPETENCE
On 11 December 2014 the Cabinet Secretary for Justice (Michael Matheson MSP) made the
following statement
―In my view the provisions of the Human Trafficking and Exploitation (Scotland) Bill
would be within the legislative competence of the Scottish Parliament
mdashmdashmdashmdashmdashmdashmdashmdashmdashmdash
PRESIDING OFFICERrsquoS STATEMENT ON LEGISLATIVE
COMPETENCE
On 11 December 2014 the Presiding Officer (Rt Hon Tricia Marwick MSP) made the following
statement
―In my view the provisions of the Human Trafficking and Exploitation (Scotland) Bill
would be within the legislative competence of the Scottish Parliament
37
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December
SP Bill 57ndashEN Session 4 (2014)
HUMAN TRAFFICKING AND EXPLOITATION
(SCOTLAND) BILL
EXPLANATORY NOTES
(AND OTHER ACCOMPANYING DOCUMENTS)
Parliamentary copyright Scottish Parliamentary Corporate Body
Information on the Scottish Parliamentrsquos copyright policy can be found on the website -
wwwscottishparliamentuk
Produced and published in Scotland on behalf of the Scottish Parliamentary Corporate Body by APS
Group Scotland
ISBN 978-1-78534-569-2
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
children first and that their needs should be treated accordingly The Scottish Government has
produced a toolkit for agencies working with children and young people to ensure that staff are
able to identify trafficked children and make appropriate referrals so that victims can receive
protection and support The toolkit is designed to be used in conjunction with National Child
Protection Guidance9 which was first published in 2010 and refreshed in 2014 and other
relevant national and international guidance Information about current expenditure on child
victims of trafficking is not recorded separately from information about wider expenditure on
child protection services
Lord Advocate guidance on prosecution policy
16 In his letter of 21 January 2013 to the Scottish Parliament European and External
Relations Committee10
the Lord Advocate set out the current arrangements for fiscals
considering the prosecution of a confirmed or potential victim of human trafficking where it is
believed or claimed that the crime was committed as a direct consequence of the personrsquos
trafficked status The letter set out the basis for the current Lord Advocatersquos guidance to
prosecutors including the presumption against the prosecution of a credible trafficking victim
for crimes that arise as a consequence of the victimrsquos trafficked status
Human trafficking strategic approach awareness raising and training
17 The first Scottish Human Trafficking Summit was hosted by the Cabinet Secretary for
Justice in October 2012 The summit brought together key law enforcement public private and
third sector organisations with an interest in human trafficking Following the summit a number
of strategic collaborative actions were agreed and progressed including with reference to
awareness raising and training for frontline staff data collection and analysis identification care
and support for both child and adult victims of trafficking and enhancing enforcement
18 One specific workstream related to awareness raising and training of front-line staff
likely to come into contact with trafficking victims or potential instances of trafficking
Following the summit Police Scotland with support from the Scottish Government and others
prepared published and circulated widely an awareness raising leaflet ndash Reading the Signs11
ndash to
assist police officers and staff in other front line posts in identifying the signs of potential
trafficking The Scottish Government also participated with the UK Government in a UK-wide
public awareness raising campaign about modern slavery and trafficking
19 In addition to general awareness raising specific training material was prepared for key
front-line staff For example all police officers were required to undertake an e-learning course
on human trafficking A special leaflet for health workers was prepared and circulated by NHS
Health Scotland An e-learning module for health workers about their role in identifying and
9 httpwwwscotlandgovukPublications2014053052
10httpwwwscottishparliamentukS3_EuropeanandExternalRelationsCommitteeGeneral20DocumentsLetterfro
mTheLordAdvocatepdf 11
httpwwwscotlandpoliceukassetspdf174967human-traffickingview=Standard
27
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
responding to victims of trafficking was made available through the National Gender Based
Violence and Health Programme12
IMPACT OF SPECIFIC PROVISIONS
PART 1 - OFFENCES
Single trafficking offence
20 The Bill establishes a new single offence of human trafficking for all types of
exploitation for both adults and children replacing existing separate criminal offences (see
paragraph 9 above) As noted above to date there have been relatively small numbers of
prosecutions under existing trafficking offences
21 The maximum penalty for conviction on indictment for the single trafficking offence will
be life imprisonment compared with a maximum of 14 years for the current separate offences
Although it will be for the court to decide how to sentence people convicted under the new single
offence in any given case it is likely that the availability of a higher maximum sentence will
have cost implications for the Scottish Prison Service (SPS)
Revised slavery servitude and forced labour offence
22 The Bill will also repeal and replace the existing exploitation offence within section 47 of
the 2010 Act which criminalises holding someone in slavery or servitude or requiring them to
perform compulsory or forced labour The offence will be revised and strengthened to allow the
court to consider in assessing whether a person has been a victim of an offence the victimrsquos
characteristics such as age physical or mental illness disability or where relevant family
relationships The maximum penalty for the offence will be increased from 14 years for the
current offence to life imprisonment for a conviction on indictment
Statutory aggravators
23 The Bill makes provision for statutory aggravators which apply in cases where an
accused person commits an offence connected with human trafficking and for when the offence
is committed in connection with the accusedrsquos position as a public official The court must take
the aggravation into account in determining the appropriate sentence if it is proved that the
offence is aggravated in this way The statutory aggravator is not anticipated to have any
substantial financial implications for public private or third sector bodies or for individuals
Costs on the Scottish Administration
24 Consolidating and clarifying the existing criminal law on trafficking and exploitation
alongside other measures arising from the Bill and the trafficking and exploitation strategy
including training and awareness raising and support for victims should increase the potential
for successful investigations prosecutions and convictions of human trafficking and exploitation
offences There have been six successful prosecutions for a specific trafficking offence to date in
Scotland with an average custodial sentence length of two years and four months against a
12
httpwwwgbvscotnhsuk
28
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
maximum possible sentence of 14 years The maximum number of prosecutions in any one year
was four individuals in two separate cases
25 Police and prosecutors already have in place specialist resources for investigating and
prosecuting human trafficking and exploitation offences and these provisions will not add to
these costs Law enforcement agencies have confirmed that whilst the number of prosecutions
for specific trafficking offences has been low where victims are identified but are unwilling to
testify individuals suspected of trafficking and exploitation will be prosecuted in court for other
related offences The Lord Advocate has identified that ―If we donrsquot have the evidence [to
prosecute for a specific human trafficking offence] we prosecute for fraud ID theft or asylum
and immigration offences13
26 The Scottish Government does not anticipate therefore significant additional cost
implications for law enforcement agencies or courts as cases will often proceed with a
trafficking offence alongside or in place of other related offences For the same reason the
Scottish Government does not anticipate significant additional cost on the Scottish Legal Aid
Board (SLAB) However if it is assumed that the number of successful trials proceeding in any
single year doubles from two to four there would be some additional costs on the COPFS the
Scottish Court Service (SCS) and SLAB based on the average unit costs for cases proceeded
either through Sheriff Court Solemn procedure or through the High Court These estimated costs
depending on whether cases are proceeded through the High Court or Sheriff Court solemn
procedure are illustrated in the table below
Table 3 Estimated unit costs of additional trial procedures through either High Court or
Sheriff Court solemn procedure (pound000)
Average prosecution
costs per procedure
(COPFS)
Average court costs
per procedure (SCS)
Average legal aid
costs per procedure
(SLAB)
Sheriff Court solemn
procedure (pound000) pound49 pound19 pound16
High Court (pound000) pound556 pound90 pound135
Estimated average
costs of 2 additional
trial procedures 4
accused per annum
(pound000)
pound99-pound1112 pound38-pound180 pound64-pound540
Source costs of the Criminal Justice System in Scotland Dataset (2013)14
27 There will also be costs to the SPS both through any increase in the number of successful
convictions for trafficking and exploitation offences and an anticipated increase in the average
length of custodial sentence for these crimes It is not possible to know for certain the total
13
httpwwwdailyrecordcouknewsscottish-newsonly-three-successful-prosecutions-brought-4457684 14httpwwwscotlandgovukTopicsStatisticsBrowseCrimeJusticePublicationscostcrimjustsc
otcostcrimjustdatasethttpwwwscotlandgovukTopicsStatisticsBrowseCrimeJusticePublicationscostcrimj
ustscotcostcrimjustdataset
29
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
number of future convictions or what sentencing decisions might be taken by courts in individual
cases
28 The table below illustrates the potential cost implications of either maintaining or
increasing the current maximum number of convictions in any individual year from four to eight
convictions For the purpose of the calculation it is assumed that the average custodial sentence
length for trafficking and exploitation offences will increase from two years and four months
(classified as a short-term sentence) to over four years (classified as a long-term sentence) as
increasing the maximum sentence to life imprisonment is anticipated to increase the average
sentence for a trafficking offence The estimated average annual cost of a prison place based on
SPS figures is pound42500 Taking account of the current early release arrangements for long-term
prisoners and the overlapping of individual sentences would result in an estimated increase of 8
to 21 total prison places each year after four years ndash ie with an additional four people receiving
custodial sentences each year and released by the Parole Board at the halfway point of their
sentence or automatically at the two-thirds point The total costs to the SPS will be within a
range of pound340000 to pound890000 These costs will fit within the overall budget costs to the SPS
As at 17 October 2014 there were 7731 people in custody in Scotland An additional 21 places
accounts for 03 of the total prison population
Table 4 Estimated range of costs to the Scottish Prison Service from increasing the
number and average length of successful prosecutions for trafficking offences
Year 1 Year 2 Year 3 Year 4
Additional Prison places 0-4 4-12 8-17 8-21
Additional Cost (pound000) pound0-pound170 pound170- pound510 pound340-pound720 pound340-pound890
Table 5 Estimated range of combined costs for trial procedures and prison places
Year 1 Year 2 Year 3 Year 4
Additional Cost (pound000) pound20-pound353 pound190- pound693 pound360-pound900 pound360-pound1073
Costs on other bodies individuals and businesses
29 There will be no new costs falling on other bodies individuals and businesses as a
consequence of these sections but see the section below with reference to victim support
Costs on local authorities
30 There will be no new costs falling on local authorities as a consequence of these specific
sections
PART 2 - PROTECTION OF VICTIMS
Duty on the Lord Advocate to publish guidance about the prosecution of credible trafficking and
exploitation victims who have committed offences
Costs on the Scottish Administration
31 As noted above the Lord Advocate already prepares and publishes guidance to fiscals
about the prosecution of credible victims of human trafficking for crimes committed as a direct
30
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
consequence of their trafficking status The requirement to publish such guidance would in
future be statutory However there will be no new costs on the Scottish Government or the
COPFS as a consequence of placing the requirement for the Lord Advocate to issue this
guidance on a statutory basis
Costs on other bodies individuals and businesses
32 There will be no new costs falling on other bodies individuals and businesses as a
consequence of these sections
Costs on local authorities
33 There will be no new costs falling on local authorities as a consequence of these sections
Ensure the rights of victims to access and support
34 The Bill will place a statutory duty on the Scottish Ministers to secure the provision of
relevant immediate support and recovery services for adult victims of trafficking subject to an
assessment of need The Bill will specify those victims or potential victims entitled to support
and the minimum time periods during which such services should be provided Specifically the
Bill will require Ministers to provide support and assistance based on each individualrsquos assessed
needs during the recovery and reflection period (currently 45 days) during which the
individualrsquos trafficking status is determined The Bill specifies minimum support and assistance
that should be considered as part of the assessment including access to housing treatment
interpretation services etc The Scottish Ministers have the flexibility to provide support and
assistance outwith the specified reflection and recovery period where this is considered
appropriate
35 As noted above the Scottish Ministers already provide grant funding totalling pound723000
to third sector organisations to assist identified adult potential victims of trafficking Provision of
support to adult victims will be placed on a statutory basis The number of adult potential victims
of trafficking referred through the NRM during 2013 was 77 although not all of these will have
requested assistance or received the full range of support services It is assumed that other
actions arising from the Bill including the single offence and publication of the trafficking and
exploitation strategy will result over time in an increase in identified victims and requests for
assistance and support
Costs on the Scottish Administration
36 The Scottish Government anticipates that improved awareness raising and training of
front-line staff will result in an increase in the number of victims identified over time It is not
possible to know how quickly this improvement will be achieved However between 2012 and
2013 the number of potential identified victims across the UK identified through the NCA
strategic assessment and NRM increased by 22 and 41 respectively Given the need for
awareness raising and training to impact the Scottish Government does not anticipate a similar
scale of increase in the immediate term but the Government considers it reasonable to anticipate
a possible increase of between 10 and 20 per annum in the overall number of requests for
assistance and support each year over the next four years Assuming a similar mix of needs as
31
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
current victims the increased costs to the Scottish Government on top of existing funding
would range between pound290000 to pound580000 per annum by year four
Table 6 Estimated range of costs increases for victim support and assistance (pound000)
Year 1 Year 2 Year 3 Year 4
Additional Cost (pound000) pound0-pound140 pound140-pound280 pound220-pound430 pound290-pound580
Costs on other bodies individuals and businesses
37 There will be no additional costs on other public bodies individuals or businesses
associated with these specific provisions There will be no direct additional costs falling on third
sector organisations as a consequence of the specific provisions It is likely however that all or
part of the additional funding identified above will be directed by the Scottish Government
through relevant third sector organisations with the expertise to provide immediate support and
protection to victims
Costs on local authorities
38 The Bill creates no new legislative requirements for the delivery of childrenrsquos services
recognising that this already exists It is therefore not anticipated that the Bill will result in any
quantifiable additional costs on local authorities or other public bodies as a result of support for
child victims Child victims of trafficking are supported as part of the Getting It Right for Every
Child (GIRFEC) approach any child whether identified as trafficked or not will be assessed on
the basis of its needs It is anticipated that as a consequence of the strategy (for which the Bill
provides) that more children may be identified as trafficked It is noted however that various
reports including most recently the UK Governmentrsquos NRM Review Report15
have found that
children who are already receiving support from relevant authorities in the UK are often not
identified as trafficked victims because of lack of awareness of the referral process It may be
that actions arising from the development of the strategy and dialogue with stakeholders will
give rise to additional activity or costs with reference to child victims of trafficking but these are
not known and cannot be estimated at this time
PART 3 - CONFISCATION OF PROPERTY
39 The Bill will provide police with powers to detain the property such as cars boats etc of
a person arrested for a trafficking offence This power will be exercised at the time of arrest and
is not expected to impose any additional costs on the police or others
Costs on the Scottish Administration
40 There will be no additional costs on the Scottish Government as a result of these
provisions Individuals can apply to the court to have vehicles ships or aircraft released from
detention This will be considered as part of the overall case and will not add to the costs to the
criminal justice system
15
httpsnrmhomeofficegovuk
32
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
Costs on other bodies individuals and businesses
41 There will be no additional costs on other public bodies individuals or businesses
including Police Scotland as a result of these specific provisions
Costs on local authorities
42 There will be no additional costs on local authorities as a result of these specific
provisions
PART 4 - TRAFFICKING AND EXPLOITATION PREVENTION AND RISK ORDERS
Introduce new measures to disrupt and prevent trafficking and exploitation
43 The Bill will introduce two new civil orders and associated interim orders to assist in
preventing trafficking and exploitation Trafficking and Exploitation Prevention Orders (TEPOs)
and Trafficking and Exploitation Risk Orders (TEROs) Where an individual has been convicted
of a trafficking or exploitation offence or an offence with a statutory trafficking aggravator a
TEPO may be imposed by a court where there is a risk that that individual may commit a further
human trafficking offence and it is necessary to make the order to protect people from the
physical or psychological harm which might occur if such an offence were committed The
TEPO will prevent the individual from engaging in activities described in the order Where a
person has not been convicted of a trafficking or exploitation offence but a court considers that
the person presents a significant risk of harm to others through the individual committing a
trafficking or exploitation offence the court can impose a TERO restricting specific activities or
imposing requirements These orders will be civil but breach of an order will constitute a
criminal offence with a maximum penalty of five years in prison available to the court
44 The Bill will categorise the trafficking and exploitation offences as lifestyle offences in
order to automatically trigger provisions within the Proceeds of Crime Act 2002 (―the 2002
Act) The definition of an offence as a ―lifestyle offence allows for proceedings under the
2002 Act to confiscate assets or monies from the individual convicted of the offence
Costs on the Scottish Administration
45 The purpose of TEPOs and TEROs is to prevent criminal activity associated with
trafficking and exploitation from arising There will be some cost implications for law
enforcement organisations which will need to monitor the terms of any order imposed by the
courts However these will be offset by the savings made from being able to intervene at an
early stage of criminality if an order has been breached For the equivalent civil orders within the
UK Modern Slavery Bill the UK Government has estimated potential net savings of between
pound130000 and pound1090000 per annum The Scottish Government has not incorporated any
savings for the purpose of Scottish legislation but expects the costs of implementing TEPOs and
TEROs and detention powers to be at least cost neutral for the Scottish Administration and other
public bodies
33
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
46 The Bill will give courts powers to impose a TEPO at the time of sentencing There will
be no immediate additional costs for the courts or COPFS associated with TEPOs imposed as
part of sentencing The Chief Constable of Police Scotland will also be able to apply to the court
for a TEPO to be imposed on a relevant offender previously convicted of a trafficking offence
There will be costs to Police Scotland in making the application and to the SCS and to SLAB in
considering the application As there have been only six previous convictions for trafficking
offences in Scotland the Scottish Government expects the number of applications for TEPOs for
previous convictions to be small one-off and will not add to the overall costs of the criminal
justice system The Chief Constable of Police Scotland can also apply to the court for a TERO
against an individual where it is considered that that individual is likely to commit a trafficking
offence
47 Looking at the equivalent costs for similar civil orders eg Sexual Offences Prevention
Orders the total costs to the SCS the COPFS and SLAB of applying for a TERO or post-
sentencing TEPO are estimated at between pound1000 and pound6000 per order It is not possible to
know how many TEPOs or TEROs might be applied for but assuming a number half the level of
the estimated maximum number of potential convictions for trafficking offences each year (four
to eight) would give estimated costs of between pound2000 (2 x pound1000) and pound24000 (4 x pound6000)
per annum
48 There will be costs to Police Scotland in monitoring TEPOs and TEROs whether
imposed at the time of sentence or by application but this will sit alongside Police Scotlandrsquos
existing crime prevention and investigative responsibilities and is not expected to add to
manpower costs
49 In addition to the costs of imposing and monitoring TEPOs and TEROs there will be
costs associated with prosecuting a breach of a TEPO or TERO Analysis in England and Wales
indicates that breaches of equivalent Serious Crime Prevention Orders are relatively low
Assuming one breach per annum the total combined costs to the COPFS the SCS and SLAB
would be between pound8400 and pound78100 per annum (see the combined costs for either sheriff
court or High Court procedures set out in Table 3 above) Assuming a maximum sentence of
five years the costs to the SPS for additional prison places would be between pound85000 and
pound127500 per annum (ie the pound42500 average costs of a prison place times either two or three
places depending on whether offenders are released early at the halfway or two-thirds point of
their sentence)
50 It is important to remember however that the purpose of TEPOs and TEROs is to
prevent further trafficking and exploitation offences occurring A TEPO or TERO will only be
imposed where a court considers that there is a credible risk of an individual committing such a
crime Any costs associated with the imposition and breach of TEPOs and TEROs needs to be
offset against the potential costs of prosecutions If each TEPO or TERO prevents the costs of a
conviction for an offence as set out in Part 1 above the costs to the Scottish Administration
would be at least cost neutral in terms of saved court and prison places expenditure
34
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
Costs on other bodies individuals and businesses
51 There will be no costs on other bodies businesses or other individuals as a consequence
of these sections
Costs on local authorities
52 There will be no new costs on local authorities as a consequence of these sections
PART 5 - STRATEGY AND REPORTING
Ensure a strategic cross-agency approach to tackling trafficking
53 The Bill places a duty on the Scottish Ministers to prepare publish and regularly review
and update a trafficking and exploitation strategy to assist in ensuring a co-ordinated and
strategic approach to this issue The provisions place a duty on Ministers to consult with such
organisations and individuals as they consider to have a relevant interest in the issues of human
trafficking and exploitation The Bill places a duty on relevant public bodies to be named in
regulations to assist in the preparation and review of the strategy
54 The Bill will place a duty on relevant public authorities to provide anonymised data about
potential human trafficking and exploitation victims to Police Scotland
Costs on the Scottish Administration
55 Activity arising from these provisions within the Bill will build on the activity and
current resources already committed to this area of work
56 Based on similar activities the estimated additional costs to the Scottish Ministers of
preparing and reviewing a trafficking and exploitation strategy will be approximately pound25000
every three years Alongside the preparation and publication of the strategy the Scottish
Ministers would also propose to support additional awareness raising and training activity to
build on the existing awareness raising and training activity already undertaken by relevant
organisations including the NHS Police Scotland and COPFS Consideration would be given to
how best to co-ordinate these resources alongside existing expenditure and activity For the
purposes of the Financial Memorandum and based on current activity additional costs on top of
existing activity are estimated at approximately pound100000 to pound250000 per annum over the first
four years of the Bill This is based on the best estimated costs of preparing and publishing
publicity and guidance material averaged over a number of years The exact costs will depend
on decisions taken in dialogue with stakeholders as part of the preparation of the strategy
57 The Scottish Government anticipates that the costs to relevant public authorities of
providing anonymised data about potential human trafficking victims to Police Scotland will be
marginal Costs to Police Scotland of collating this data will form part of their existing
intelligence gathering activity
35
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
Costs on other bodies individuals and businesses
58 There will be some costs on other bodies individuals and businesses in engaging with the
Scottish Ministers in the preparation and publication of the Strategy For business and
individuals this will be voluntary depending on their willingness to engage For public bodies
their level of engagement will depend on the relevance of the issue of trafficking and
exploitation to their work and their potential contribution to combating this behaviour Any
additional costs are expected to fit within or sit alongside their existing responsibilities for
example with reference to promoting and ensuring equalities and the application of human
rights obligations
Costs on local authorities
59 There will be costs on local authorities associated with engaging in the preparation and
review of the trafficking and exploitation strategy and in awareness raising and training of front-
line staff The additional costs should be marginal on top of the existing guidance and activity
already in place with reference to the identification and support of potential child victims of
trafficking The aim will be to minimise costs for other front-line local authority staff by
adapting the general awareness raising and training materials described above
SUMMARY
60 The table below provides a summary of the costs of each element of the Bill as described
above
Table 7 Summary table of costs for each aspect of the Bill (pound000)
Year 1 Year 2 Year 3 Year 4
Clarifying amp
Strengthening the
Criminal Law ndash Para 28 pound20-pound353 pound190- pound693 pound360-pound900 pound360-pound1073
Ensure the rights of
victims to access and
support - Para 36 pound70-pound140 pound140-pound280 pound220-pound430 pound290-pound580
Introduce new measures to
disrupt and prevent
trafficking pound016
pound0 pound0 pound0
Ensure a strategic cross
agency approach to
tackling trafficking ndash Para
56 pound125-pound275 pound100-pound250 pound100-pound250 pound125-pound275
TOTAL pound215-pound768 pound430-pound1223 pound680-pound1580 pound775-pound1928
16
The Scottish Government considers that the overall costs are at least cost neutral ndash see paragraphs 45 to 50
36
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December
SCOTTISH GOVERNMENT STATEMENT ON LEGISLATIVE
COMPETENCE
On 11 December 2014 the Cabinet Secretary for Justice (Michael Matheson MSP) made the
following statement
―In my view the provisions of the Human Trafficking and Exploitation (Scotland) Bill
would be within the legislative competence of the Scottish Parliament
mdashmdashmdashmdashmdashmdashmdashmdashmdashmdash
PRESIDING OFFICERrsquoS STATEMENT ON LEGISLATIVE
COMPETENCE
On 11 December 2014 the Presiding Officer (Rt Hon Tricia Marwick MSP) made the following
statement
―In my view the provisions of the Human Trafficking and Exploitation (Scotland) Bill
would be within the legislative competence of the Scottish Parliament
37
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December
SP Bill 57ndashEN Session 4 (2014)
HUMAN TRAFFICKING AND EXPLOITATION
(SCOTLAND) BILL
EXPLANATORY NOTES
(AND OTHER ACCOMPANYING DOCUMENTS)
Parliamentary copyright Scottish Parliamentary Corporate Body
Information on the Scottish Parliamentrsquos copyright policy can be found on the website -
wwwscottishparliamentuk
Produced and published in Scotland on behalf of the Scottish Parliamentary Corporate Body by APS
Group Scotland
ISBN 978-1-78534-569-2
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
responding to victims of trafficking was made available through the National Gender Based
Violence and Health Programme12
IMPACT OF SPECIFIC PROVISIONS
PART 1 - OFFENCES
Single trafficking offence
20 The Bill establishes a new single offence of human trafficking for all types of
exploitation for both adults and children replacing existing separate criminal offences (see
paragraph 9 above) As noted above to date there have been relatively small numbers of
prosecutions under existing trafficking offences
21 The maximum penalty for conviction on indictment for the single trafficking offence will
be life imprisonment compared with a maximum of 14 years for the current separate offences
Although it will be for the court to decide how to sentence people convicted under the new single
offence in any given case it is likely that the availability of a higher maximum sentence will
have cost implications for the Scottish Prison Service (SPS)
Revised slavery servitude and forced labour offence
22 The Bill will also repeal and replace the existing exploitation offence within section 47 of
the 2010 Act which criminalises holding someone in slavery or servitude or requiring them to
perform compulsory or forced labour The offence will be revised and strengthened to allow the
court to consider in assessing whether a person has been a victim of an offence the victimrsquos
characteristics such as age physical or mental illness disability or where relevant family
relationships The maximum penalty for the offence will be increased from 14 years for the
current offence to life imprisonment for a conviction on indictment
Statutory aggravators
23 The Bill makes provision for statutory aggravators which apply in cases where an
accused person commits an offence connected with human trafficking and for when the offence
is committed in connection with the accusedrsquos position as a public official The court must take
the aggravation into account in determining the appropriate sentence if it is proved that the
offence is aggravated in this way The statutory aggravator is not anticipated to have any
substantial financial implications for public private or third sector bodies or for individuals
Costs on the Scottish Administration
24 Consolidating and clarifying the existing criminal law on trafficking and exploitation
alongside other measures arising from the Bill and the trafficking and exploitation strategy
including training and awareness raising and support for victims should increase the potential
for successful investigations prosecutions and convictions of human trafficking and exploitation
offences There have been six successful prosecutions for a specific trafficking offence to date in
Scotland with an average custodial sentence length of two years and four months against a
12
httpwwwgbvscotnhsuk
28
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
maximum possible sentence of 14 years The maximum number of prosecutions in any one year
was four individuals in two separate cases
25 Police and prosecutors already have in place specialist resources for investigating and
prosecuting human trafficking and exploitation offences and these provisions will not add to
these costs Law enforcement agencies have confirmed that whilst the number of prosecutions
for specific trafficking offences has been low where victims are identified but are unwilling to
testify individuals suspected of trafficking and exploitation will be prosecuted in court for other
related offences The Lord Advocate has identified that ―If we donrsquot have the evidence [to
prosecute for a specific human trafficking offence] we prosecute for fraud ID theft or asylum
and immigration offences13
26 The Scottish Government does not anticipate therefore significant additional cost
implications for law enforcement agencies or courts as cases will often proceed with a
trafficking offence alongside or in place of other related offences For the same reason the
Scottish Government does not anticipate significant additional cost on the Scottish Legal Aid
Board (SLAB) However if it is assumed that the number of successful trials proceeding in any
single year doubles from two to four there would be some additional costs on the COPFS the
Scottish Court Service (SCS) and SLAB based on the average unit costs for cases proceeded
either through Sheriff Court Solemn procedure or through the High Court These estimated costs
depending on whether cases are proceeded through the High Court or Sheriff Court solemn
procedure are illustrated in the table below
Table 3 Estimated unit costs of additional trial procedures through either High Court or
Sheriff Court solemn procedure (pound000)
Average prosecution
costs per procedure
(COPFS)
Average court costs
per procedure (SCS)
Average legal aid
costs per procedure
(SLAB)
Sheriff Court solemn
procedure (pound000) pound49 pound19 pound16
High Court (pound000) pound556 pound90 pound135
Estimated average
costs of 2 additional
trial procedures 4
accused per annum
(pound000)
pound99-pound1112 pound38-pound180 pound64-pound540
Source costs of the Criminal Justice System in Scotland Dataset (2013)14
27 There will also be costs to the SPS both through any increase in the number of successful
convictions for trafficking and exploitation offences and an anticipated increase in the average
length of custodial sentence for these crimes It is not possible to know for certain the total
13
httpwwwdailyrecordcouknewsscottish-newsonly-three-successful-prosecutions-brought-4457684 14httpwwwscotlandgovukTopicsStatisticsBrowseCrimeJusticePublicationscostcrimjustsc
otcostcrimjustdatasethttpwwwscotlandgovukTopicsStatisticsBrowseCrimeJusticePublicationscostcrimj
ustscotcostcrimjustdataset
29
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
number of future convictions or what sentencing decisions might be taken by courts in individual
cases
28 The table below illustrates the potential cost implications of either maintaining or
increasing the current maximum number of convictions in any individual year from four to eight
convictions For the purpose of the calculation it is assumed that the average custodial sentence
length for trafficking and exploitation offences will increase from two years and four months
(classified as a short-term sentence) to over four years (classified as a long-term sentence) as
increasing the maximum sentence to life imprisonment is anticipated to increase the average
sentence for a trafficking offence The estimated average annual cost of a prison place based on
SPS figures is pound42500 Taking account of the current early release arrangements for long-term
prisoners and the overlapping of individual sentences would result in an estimated increase of 8
to 21 total prison places each year after four years ndash ie with an additional four people receiving
custodial sentences each year and released by the Parole Board at the halfway point of their
sentence or automatically at the two-thirds point The total costs to the SPS will be within a
range of pound340000 to pound890000 These costs will fit within the overall budget costs to the SPS
As at 17 October 2014 there were 7731 people in custody in Scotland An additional 21 places
accounts for 03 of the total prison population
Table 4 Estimated range of costs to the Scottish Prison Service from increasing the
number and average length of successful prosecutions for trafficking offences
Year 1 Year 2 Year 3 Year 4
Additional Prison places 0-4 4-12 8-17 8-21
Additional Cost (pound000) pound0-pound170 pound170- pound510 pound340-pound720 pound340-pound890
Table 5 Estimated range of combined costs for trial procedures and prison places
Year 1 Year 2 Year 3 Year 4
Additional Cost (pound000) pound20-pound353 pound190- pound693 pound360-pound900 pound360-pound1073
Costs on other bodies individuals and businesses
29 There will be no new costs falling on other bodies individuals and businesses as a
consequence of these sections but see the section below with reference to victim support
Costs on local authorities
30 There will be no new costs falling on local authorities as a consequence of these specific
sections
PART 2 - PROTECTION OF VICTIMS
Duty on the Lord Advocate to publish guidance about the prosecution of credible trafficking and
exploitation victims who have committed offences
Costs on the Scottish Administration
31 As noted above the Lord Advocate already prepares and publishes guidance to fiscals
about the prosecution of credible victims of human trafficking for crimes committed as a direct
30
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
consequence of their trafficking status The requirement to publish such guidance would in
future be statutory However there will be no new costs on the Scottish Government or the
COPFS as a consequence of placing the requirement for the Lord Advocate to issue this
guidance on a statutory basis
Costs on other bodies individuals and businesses
32 There will be no new costs falling on other bodies individuals and businesses as a
consequence of these sections
Costs on local authorities
33 There will be no new costs falling on local authorities as a consequence of these sections
Ensure the rights of victims to access and support
34 The Bill will place a statutory duty on the Scottish Ministers to secure the provision of
relevant immediate support and recovery services for adult victims of trafficking subject to an
assessment of need The Bill will specify those victims or potential victims entitled to support
and the minimum time periods during which such services should be provided Specifically the
Bill will require Ministers to provide support and assistance based on each individualrsquos assessed
needs during the recovery and reflection period (currently 45 days) during which the
individualrsquos trafficking status is determined The Bill specifies minimum support and assistance
that should be considered as part of the assessment including access to housing treatment
interpretation services etc The Scottish Ministers have the flexibility to provide support and
assistance outwith the specified reflection and recovery period where this is considered
appropriate
35 As noted above the Scottish Ministers already provide grant funding totalling pound723000
to third sector organisations to assist identified adult potential victims of trafficking Provision of
support to adult victims will be placed on a statutory basis The number of adult potential victims
of trafficking referred through the NRM during 2013 was 77 although not all of these will have
requested assistance or received the full range of support services It is assumed that other
actions arising from the Bill including the single offence and publication of the trafficking and
exploitation strategy will result over time in an increase in identified victims and requests for
assistance and support
Costs on the Scottish Administration
36 The Scottish Government anticipates that improved awareness raising and training of
front-line staff will result in an increase in the number of victims identified over time It is not
possible to know how quickly this improvement will be achieved However between 2012 and
2013 the number of potential identified victims across the UK identified through the NCA
strategic assessment and NRM increased by 22 and 41 respectively Given the need for
awareness raising and training to impact the Scottish Government does not anticipate a similar
scale of increase in the immediate term but the Government considers it reasonable to anticipate
a possible increase of between 10 and 20 per annum in the overall number of requests for
assistance and support each year over the next four years Assuming a similar mix of needs as
31
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
current victims the increased costs to the Scottish Government on top of existing funding
would range between pound290000 to pound580000 per annum by year four
Table 6 Estimated range of costs increases for victim support and assistance (pound000)
Year 1 Year 2 Year 3 Year 4
Additional Cost (pound000) pound0-pound140 pound140-pound280 pound220-pound430 pound290-pound580
Costs on other bodies individuals and businesses
37 There will be no additional costs on other public bodies individuals or businesses
associated with these specific provisions There will be no direct additional costs falling on third
sector organisations as a consequence of the specific provisions It is likely however that all or
part of the additional funding identified above will be directed by the Scottish Government
through relevant third sector organisations with the expertise to provide immediate support and
protection to victims
Costs on local authorities
38 The Bill creates no new legislative requirements for the delivery of childrenrsquos services
recognising that this already exists It is therefore not anticipated that the Bill will result in any
quantifiable additional costs on local authorities or other public bodies as a result of support for
child victims Child victims of trafficking are supported as part of the Getting It Right for Every
Child (GIRFEC) approach any child whether identified as trafficked or not will be assessed on
the basis of its needs It is anticipated that as a consequence of the strategy (for which the Bill
provides) that more children may be identified as trafficked It is noted however that various
reports including most recently the UK Governmentrsquos NRM Review Report15
have found that
children who are already receiving support from relevant authorities in the UK are often not
identified as trafficked victims because of lack of awareness of the referral process It may be
that actions arising from the development of the strategy and dialogue with stakeholders will
give rise to additional activity or costs with reference to child victims of trafficking but these are
not known and cannot be estimated at this time
PART 3 - CONFISCATION OF PROPERTY
39 The Bill will provide police with powers to detain the property such as cars boats etc of
a person arrested for a trafficking offence This power will be exercised at the time of arrest and
is not expected to impose any additional costs on the police or others
Costs on the Scottish Administration
40 There will be no additional costs on the Scottish Government as a result of these
provisions Individuals can apply to the court to have vehicles ships or aircraft released from
detention This will be considered as part of the overall case and will not add to the costs to the
criminal justice system
15
httpsnrmhomeofficegovuk
32
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
Costs on other bodies individuals and businesses
41 There will be no additional costs on other public bodies individuals or businesses
including Police Scotland as a result of these specific provisions
Costs on local authorities
42 There will be no additional costs on local authorities as a result of these specific
provisions
PART 4 - TRAFFICKING AND EXPLOITATION PREVENTION AND RISK ORDERS
Introduce new measures to disrupt and prevent trafficking and exploitation
43 The Bill will introduce two new civil orders and associated interim orders to assist in
preventing trafficking and exploitation Trafficking and Exploitation Prevention Orders (TEPOs)
and Trafficking and Exploitation Risk Orders (TEROs) Where an individual has been convicted
of a trafficking or exploitation offence or an offence with a statutory trafficking aggravator a
TEPO may be imposed by a court where there is a risk that that individual may commit a further
human trafficking offence and it is necessary to make the order to protect people from the
physical or psychological harm which might occur if such an offence were committed The
TEPO will prevent the individual from engaging in activities described in the order Where a
person has not been convicted of a trafficking or exploitation offence but a court considers that
the person presents a significant risk of harm to others through the individual committing a
trafficking or exploitation offence the court can impose a TERO restricting specific activities or
imposing requirements These orders will be civil but breach of an order will constitute a
criminal offence with a maximum penalty of five years in prison available to the court
44 The Bill will categorise the trafficking and exploitation offences as lifestyle offences in
order to automatically trigger provisions within the Proceeds of Crime Act 2002 (―the 2002
Act) The definition of an offence as a ―lifestyle offence allows for proceedings under the
2002 Act to confiscate assets or monies from the individual convicted of the offence
Costs on the Scottish Administration
45 The purpose of TEPOs and TEROs is to prevent criminal activity associated with
trafficking and exploitation from arising There will be some cost implications for law
enforcement organisations which will need to monitor the terms of any order imposed by the
courts However these will be offset by the savings made from being able to intervene at an
early stage of criminality if an order has been breached For the equivalent civil orders within the
UK Modern Slavery Bill the UK Government has estimated potential net savings of between
pound130000 and pound1090000 per annum The Scottish Government has not incorporated any
savings for the purpose of Scottish legislation but expects the costs of implementing TEPOs and
TEROs and detention powers to be at least cost neutral for the Scottish Administration and other
public bodies
33
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
46 The Bill will give courts powers to impose a TEPO at the time of sentencing There will
be no immediate additional costs for the courts or COPFS associated with TEPOs imposed as
part of sentencing The Chief Constable of Police Scotland will also be able to apply to the court
for a TEPO to be imposed on a relevant offender previously convicted of a trafficking offence
There will be costs to Police Scotland in making the application and to the SCS and to SLAB in
considering the application As there have been only six previous convictions for trafficking
offences in Scotland the Scottish Government expects the number of applications for TEPOs for
previous convictions to be small one-off and will not add to the overall costs of the criminal
justice system The Chief Constable of Police Scotland can also apply to the court for a TERO
against an individual where it is considered that that individual is likely to commit a trafficking
offence
47 Looking at the equivalent costs for similar civil orders eg Sexual Offences Prevention
Orders the total costs to the SCS the COPFS and SLAB of applying for a TERO or post-
sentencing TEPO are estimated at between pound1000 and pound6000 per order It is not possible to
know how many TEPOs or TEROs might be applied for but assuming a number half the level of
the estimated maximum number of potential convictions for trafficking offences each year (four
to eight) would give estimated costs of between pound2000 (2 x pound1000) and pound24000 (4 x pound6000)
per annum
48 There will be costs to Police Scotland in monitoring TEPOs and TEROs whether
imposed at the time of sentence or by application but this will sit alongside Police Scotlandrsquos
existing crime prevention and investigative responsibilities and is not expected to add to
manpower costs
49 In addition to the costs of imposing and monitoring TEPOs and TEROs there will be
costs associated with prosecuting a breach of a TEPO or TERO Analysis in England and Wales
indicates that breaches of equivalent Serious Crime Prevention Orders are relatively low
Assuming one breach per annum the total combined costs to the COPFS the SCS and SLAB
would be between pound8400 and pound78100 per annum (see the combined costs for either sheriff
court or High Court procedures set out in Table 3 above) Assuming a maximum sentence of
five years the costs to the SPS for additional prison places would be between pound85000 and
pound127500 per annum (ie the pound42500 average costs of a prison place times either two or three
places depending on whether offenders are released early at the halfway or two-thirds point of
their sentence)
50 It is important to remember however that the purpose of TEPOs and TEROs is to
prevent further trafficking and exploitation offences occurring A TEPO or TERO will only be
imposed where a court considers that there is a credible risk of an individual committing such a
crime Any costs associated with the imposition and breach of TEPOs and TEROs needs to be
offset against the potential costs of prosecutions If each TEPO or TERO prevents the costs of a
conviction for an offence as set out in Part 1 above the costs to the Scottish Administration
would be at least cost neutral in terms of saved court and prison places expenditure
34
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
Costs on other bodies individuals and businesses
51 There will be no costs on other bodies businesses or other individuals as a consequence
of these sections
Costs on local authorities
52 There will be no new costs on local authorities as a consequence of these sections
PART 5 - STRATEGY AND REPORTING
Ensure a strategic cross-agency approach to tackling trafficking
53 The Bill places a duty on the Scottish Ministers to prepare publish and regularly review
and update a trafficking and exploitation strategy to assist in ensuring a co-ordinated and
strategic approach to this issue The provisions place a duty on Ministers to consult with such
organisations and individuals as they consider to have a relevant interest in the issues of human
trafficking and exploitation The Bill places a duty on relevant public bodies to be named in
regulations to assist in the preparation and review of the strategy
54 The Bill will place a duty on relevant public authorities to provide anonymised data about
potential human trafficking and exploitation victims to Police Scotland
Costs on the Scottish Administration
55 Activity arising from these provisions within the Bill will build on the activity and
current resources already committed to this area of work
56 Based on similar activities the estimated additional costs to the Scottish Ministers of
preparing and reviewing a trafficking and exploitation strategy will be approximately pound25000
every three years Alongside the preparation and publication of the strategy the Scottish
Ministers would also propose to support additional awareness raising and training activity to
build on the existing awareness raising and training activity already undertaken by relevant
organisations including the NHS Police Scotland and COPFS Consideration would be given to
how best to co-ordinate these resources alongside existing expenditure and activity For the
purposes of the Financial Memorandum and based on current activity additional costs on top of
existing activity are estimated at approximately pound100000 to pound250000 per annum over the first
four years of the Bill This is based on the best estimated costs of preparing and publishing
publicity and guidance material averaged over a number of years The exact costs will depend
on decisions taken in dialogue with stakeholders as part of the preparation of the strategy
57 The Scottish Government anticipates that the costs to relevant public authorities of
providing anonymised data about potential human trafficking victims to Police Scotland will be
marginal Costs to Police Scotland of collating this data will form part of their existing
intelligence gathering activity
35
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
Costs on other bodies individuals and businesses
58 There will be some costs on other bodies individuals and businesses in engaging with the
Scottish Ministers in the preparation and publication of the Strategy For business and
individuals this will be voluntary depending on their willingness to engage For public bodies
their level of engagement will depend on the relevance of the issue of trafficking and
exploitation to their work and their potential contribution to combating this behaviour Any
additional costs are expected to fit within or sit alongside their existing responsibilities for
example with reference to promoting and ensuring equalities and the application of human
rights obligations
Costs on local authorities
59 There will be costs on local authorities associated with engaging in the preparation and
review of the trafficking and exploitation strategy and in awareness raising and training of front-
line staff The additional costs should be marginal on top of the existing guidance and activity
already in place with reference to the identification and support of potential child victims of
trafficking The aim will be to minimise costs for other front-line local authority staff by
adapting the general awareness raising and training materials described above
SUMMARY
60 The table below provides a summary of the costs of each element of the Bill as described
above
Table 7 Summary table of costs for each aspect of the Bill (pound000)
Year 1 Year 2 Year 3 Year 4
Clarifying amp
Strengthening the
Criminal Law ndash Para 28 pound20-pound353 pound190- pound693 pound360-pound900 pound360-pound1073
Ensure the rights of
victims to access and
support - Para 36 pound70-pound140 pound140-pound280 pound220-pound430 pound290-pound580
Introduce new measures to
disrupt and prevent
trafficking pound016
pound0 pound0 pound0
Ensure a strategic cross
agency approach to
tackling trafficking ndash Para
56 pound125-pound275 pound100-pound250 pound100-pound250 pound125-pound275
TOTAL pound215-pound768 pound430-pound1223 pound680-pound1580 pound775-pound1928
16
The Scottish Government considers that the overall costs are at least cost neutral ndash see paragraphs 45 to 50
36
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December
SCOTTISH GOVERNMENT STATEMENT ON LEGISLATIVE
COMPETENCE
On 11 December 2014 the Cabinet Secretary for Justice (Michael Matheson MSP) made the
following statement
―In my view the provisions of the Human Trafficking and Exploitation (Scotland) Bill
would be within the legislative competence of the Scottish Parliament
mdashmdashmdashmdashmdashmdashmdashmdashmdashmdash
PRESIDING OFFICERrsquoS STATEMENT ON LEGISLATIVE
COMPETENCE
On 11 December 2014 the Presiding Officer (Rt Hon Tricia Marwick MSP) made the following
statement
―In my view the provisions of the Human Trafficking and Exploitation (Scotland) Bill
would be within the legislative competence of the Scottish Parliament
37
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December
SP Bill 57ndashEN Session 4 (2014)
HUMAN TRAFFICKING AND EXPLOITATION
(SCOTLAND) BILL
EXPLANATORY NOTES
(AND OTHER ACCOMPANYING DOCUMENTS)
Parliamentary copyright Scottish Parliamentary Corporate Body
Information on the Scottish Parliamentrsquos copyright policy can be found on the website -
wwwscottishparliamentuk
Produced and published in Scotland on behalf of the Scottish Parliamentary Corporate Body by APS
Group Scotland
ISBN 978-1-78534-569-2
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
maximum possible sentence of 14 years The maximum number of prosecutions in any one year
was four individuals in two separate cases
25 Police and prosecutors already have in place specialist resources for investigating and
prosecuting human trafficking and exploitation offences and these provisions will not add to
these costs Law enforcement agencies have confirmed that whilst the number of prosecutions
for specific trafficking offences has been low where victims are identified but are unwilling to
testify individuals suspected of trafficking and exploitation will be prosecuted in court for other
related offences The Lord Advocate has identified that ―If we donrsquot have the evidence [to
prosecute for a specific human trafficking offence] we prosecute for fraud ID theft or asylum
and immigration offences13
26 The Scottish Government does not anticipate therefore significant additional cost
implications for law enforcement agencies or courts as cases will often proceed with a
trafficking offence alongside or in place of other related offences For the same reason the
Scottish Government does not anticipate significant additional cost on the Scottish Legal Aid
Board (SLAB) However if it is assumed that the number of successful trials proceeding in any
single year doubles from two to four there would be some additional costs on the COPFS the
Scottish Court Service (SCS) and SLAB based on the average unit costs for cases proceeded
either through Sheriff Court Solemn procedure or through the High Court These estimated costs
depending on whether cases are proceeded through the High Court or Sheriff Court solemn
procedure are illustrated in the table below
Table 3 Estimated unit costs of additional trial procedures through either High Court or
Sheriff Court solemn procedure (pound000)
Average prosecution
costs per procedure
(COPFS)
Average court costs
per procedure (SCS)
Average legal aid
costs per procedure
(SLAB)
Sheriff Court solemn
procedure (pound000) pound49 pound19 pound16
High Court (pound000) pound556 pound90 pound135
Estimated average
costs of 2 additional
trial procedures 4
accused per annum
(pound000)
pound99-pound1112 pound38-pound180 pound64-pound540
Source costs of the Criminal Justice System in Scotland Dataset (2013)14
27 There will also be costs to the SPS both through any increase in the number of successful
convictions for trafficking and exploitation offences and an anticipated increase in the average
length of custodial sentence for these crimes It is not possible to know for certain the total
13
httpwwwdailyrecordcouknewsscottish-newsonly-three-successful-prosecutions-brought-4457684 14httpwwwscotlandgovukTopicsStatisticsBrowseCrimeJusticePublicationscostcrimjustsc
otcostcrimjustdatasethttpwwwscotlandgovukTopicsStatisticsBrowseCrimeJusticePublicationscostcrimj
ustscotcostcrimjustdataset
29
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
number of future convictions or what sentencing decisions might be taken by courts in individual
cases
28 The table below illustrates the potential cost implications of either maintaining or
increasing the current maximum number of convictions in any individual year from four to eight
convictions For the purpose of the calculation it is assumed that the average custodial sentence
length for trafficking and exploitation offences will increase from two years and four months
(classified as a short-term sentence) to over four years (classified as a long-term sentence) as
increasing the maximum sentence to life imprisonment is anticipated to increase the average
sentence for a trafficking offence The estimated average annual cost of a prison place based on
SPS figures is pound42500 Taking account of the current early release arrangements for long-term
prisoners and the overlapping of individual sentences would result in an estimated increase of 8
to 21 total prison places each year after four years ndash ie with an additional four people receiving
custodial sentences each year and released by the Parole Board at the halfway point of their
sentence or automatically at the two-thirds point The total costs to the SPS will be within a
range of pound340000 to pound890000 These costs will fit within the overall budget costs to the SPS
As at 17 October 2014 there were 7731 people in custody in Scotland An additional 21 places
accounts for 03 of the total prison population
Table 4 Estimated range of costs to the Scottish Prison Service from increasing the
number and average length of successful prosecutions for trafficking offences
Year 1 Year 2 Year 3 Year 4
Additional Prison places 0-4 4-12 8-17 8-21
Additional Cost (pound000) pound0-pound170 pound170- pound510 pound340-pound720 pound340-pound890
Table 5 Estimated range of combined costs for trial procedures and prison places
Year 1 Year 2 Year 3 Year 4
Additional Cost (pound000) pound20-pound353 pound190- pound693 pound360-pound900 pound360-pound1073
Costs on other bodies individuals and businesses
29 There will be no new costs falling on other bodies individuals and businesses as a
consequence of these sections but see the section below with reference to victim support
Costs on local authorities
30 There will be no new costs falling on local authorities as a consequence of these specific
sections
PART 2 - PROTECTION OF VICTIMS
Duty on the Lord Advocate to publish guidance about the prosecution of credible trafficking and
exploitation victims who have committed offences
Costs on the Scottish Administration
31 As noted above the Lord Advocate already prepares and publishes guidance to fiscals
about the prosecution of credible victims of human trafficking for crimes committed as a direct
30
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
consequence of their trafficking status The requirement to publish such guidance would in
future be statutory However there will be no new costs on the Scottish Government or the
COPFS as a consequence of placing the requirement for the Lord Advocate to issue this
guidance on a statutory basis
Costs on other bodies individuals and businesses
32 There will be no new costs falling on other bodies individuals and businesses as a
consequence of these sections
Costs on local authorities
33 There will be no new costs falling on local authorities as a consequence of these sections
Ensure the rights of victims to access and support
34 The Bill will place a statutory duty on the Scottish Ministers to secure the provision of
relevant immediate support and recovery services for adult victims of trafficking subject to an
assessment of need The Bill will specify those victims or potential victims entitled to support
and the minimum time periods during which such services should be provided Specifically the
Bill will require Ministers to provide support and assistance based on each individualrsquos assessed
needs during the recovery and reflection period (currently 45 days) during which the
individualrsquos trafficking status is determined The Bill specifies minimum support and assistance
that should be considered as part of the assessment including access to housing treatment
interpretation services etc The Scottish Ministers have the flexibility to provide support and
assistance outwith the specified reflection and recovery period where this is considered
appropriate
35 As noted above the Scottish Ministers already provide grant funding totalling pound723000
to third sector organisations to assist identified adult potential victims of trafficking Provision of
support to adult victims will be placed on a statutory basis The number of adult potential victims
of trafficking referred through the NRM during 2013 was 77 although not all of these will have
requested assistance or received the full range of support services It is assumed that other
actions arising from the Bill including the single offence and publication of the trafficking and
exploitation strategy will result over time in an increase in identified victims and requests for
assistance and support
Costs on the Scottish Administration
36 The Scottish Government anticipates that improved awareness raising and training of
front-line staff will result in an increase in the number of victims identified over time It is not
possible to know how quickly this improvement will be achieved However between 2012 and
2013 the number of potential identified victims across the UK identified through the NCA
strategic assessment and NRM increased by 22 and 41 respectively Given the need for
awareness raising and training to impact the Scottish Government does not anticipate a similar
scale of increase in the immediate term but the Government considers it reasonable to anticipate
a possible increase of between 10 and 20 per annum in the overall number of requests for
assistance and support each year over the next four years Assuming a similar mix of needs as
31
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
current victims the increased costs to the Scottish Government on top of existing funding
would range between pound290000 to pound580000 per annum by year four
Table 6 Estimated range of costs increases for victim support and assistance (pound000)
Year 1 Year 2 Year 3 Year 4
Additional Cost (pound000) pound0-pound140 pound140-pound280 pound220-pound430 pound290-pound580
Costs on other bodies individuals and businesses
37 There will be no additional costs on other public bodies individuals or businesses
associated with these specific provisions There will be no direct additional costs falling on third
sector organisations as a consequence of the specific provisions It is likely however that all or
part of the additional funding identified above will be directed by the Scottish Government
through relevant third sector organisations with the expertise to provide immediate support and
protection to victims
Costs on local authorities
38 The Bill creates no new legislative requirements for the delivery of childrenrsquos services
recognising that this already exists It is therefore not anticipated that the Bill will result in any
quantifiable additional costs on local authorities or other public bodies as a result of support for
child victims Child victims of trafficking are supported as part of the Getting It Right for Every
Child (GIRFEC) approach any child whether identified as trafficked or not will be assessed on
the basis of its needs It is anticipated that as a consequence of the strategy (for which the Bill
provides) that more children may be identified as trafficked It is noted however that various
reports including most recently the UK Governmentrsquos NRM Review Report15
have found that
children who are already receiving support from relevant authorities in the UK are often not
identified as trafficked victims because of lack of awareness of the referral process It may be
that actions arising from the development of the strategy and dialogue with stakeholders will
give rise to additional activity or costs with reference to child victims of trafficking but these are
not known and cannot be estimated at this time
PART 3 - CONFISCATION OF PROPERTY
39 The Bill will provide police with powers to detain the property such as cars boats etc of
a person arrested for a trafficking offence This power will be exercised at the time of arrest and
is not expected to impose any additional costs on the police or others
Costs on the Scottish Administration
40 There will be no additional costs on the Scottish Government as a result of these
provisions Individuals can apply to the court to have vehicles ships or aircraft released from
detention This will be considered as part of the overall case and will not add to the costs to the
criminal justice system
15
httpsnrmhomeofficegovuk
32
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
Costs on other bodies individuals and businesses
41 There will be no additional costs on other public bodies individuals or businesses
including Police Scotland as a result of these specific provisions
Costs on local authorities
42 There will be no additional costs on local authorities as a result of these specific
provisions
PART 4 - TRAFFICKING AND EXPLOITATION PREVENTION AND RISK ORDERS
Introduce new measures to disrupt and prevent trafficking and exploitation
43 The Bill will introduce two new civil orders and associated interim orders to assist in
preventing trafficking and exploitation Trafficking and Exploitation Prevention Orders (TEPOs)
and Trafficking and Exploitation Risk Orders (TEROs) Where an individual has been convicted
of a trafficking or exploitation offence or an offence with a statutory trafficking aggravator a
TEPO may be imposed by a court where there is a risk that that individual may commit a further
human trafficking offence and it is necessary to make the order to protect people from the
physical or psychological harm which might occur if such an offence were committed The
TEPO will prevent the individual from engaging in activities described in the order Where a
person has not been convicted of a trafficking or exploitation offence but a court considers that
the person presents a significant risk of harm to others through the individual committing a
trafficking or exploitation offence the court can impose a TERO restricting specific activities or
imposing requirements These orders will be civil but breach of an order will constitute a
criminal offence with a maximum penalty of five years in prison available to the court
44 The Bill will categorise the trafficking and exploitation offences as lifestyle offences in
order to automatically trigger provisions within the Proceeds of Crime Act 2002 (―the 2002
Act) The definition of an offence as a ―lifestyle offence allows for proceedings under the
2002 Act to confiscate assets or monies from the individual convicted of the offence
Costs on the Scottish Administration
45 The purpose of TEPOs and TEROs is to prevent criminal activity associated with
trafficking and exploitation from arising There will be some cost implications for law
enforcement organisations which will need to monitor the terms of any order imposed by the
courts However these will be offset by the savings made from being able to intervene at an
early stage of criminality if an order has been breached For the equivalent civil orders within the
UK Modern Slavery Bill the UK Government has estimated potential net savings of between
pound130000 and pound1090000 per annum The Scottish Government has not incorporated any
savings for the purpose of Scottish legislation but expects the costs of implementing TEPOs and
TEROs and detention powers to be at least cost neutral for the Scottish Administration and other
public bodies
33
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
46 The Bill will give courts powers to impose a TEPO at the time of sentencing There will
be no immediate additional costs for the courts or COPFS associated with TEPOs imposed as
part of sentencing The Chief Constable of Police Scotland will also be able to apply to the court
for a TEPO to be imposed on a relevant offender previously convicted of a trafficking offence
There will be costs to Police Scotland in making the application and to the SCS and to SLAB in
considering the application As there have been only six previous convictions for trafficking
offences in Scotland the Scottish Government expects the number of applications for TEPOs for
previous convictions to be small one-off and will not add to the overall costs of the criminal
justice system The Chief Constable of Police Scotland can also apply to the court for a TERO
against an individual where it is considered that that individual is likely to commit a trafficking
offence
47 Looking at the equivalent costs for similar civil orders eg Sexual Offences Prevention
Orders the total costs to the SCS the COPFS and SLAB of applying for a TERO or post-
sentencing TEPO are estimated at between pound1000 and pound6000 per order It is not possible to
know how many TEPOs or TEROs might be applied for but assuming a number half the level of
the estimated maximum number of potential convictions for trafficking offences each year (four
to eight) would give estimated costs of between pound2000 (2 x pound1000) and pound24000 (4 x pound6000)
per annum
48 There will be costs to Police Scotland in monitoring TEPOs and TEROs whether
imposed at the time of sentence or by application but this will sit alongside Police Scotlandrsquos
existing crime prevention and investigative responsibilities and is not expected to add to
manpower costs
49 In addition to the costs of imposing and monitoring TEPOs and TEROs there will be
costs associated with prosecuting a breach of a TEPO or TERO Analysis in England and Wales
indicates that breaches of equivalent Serious Crime Prevention Orders are relatively low
Assuming one breach per annum the total combined costs to the COPFS the SCS and SLAB
would be between pound8400 and pound78100 per annum (see the combined costs for either sheriff
court or High Court procedures set out in Table 3 above) Assuming a maximum sentence of
five years the costs to the SPS for additional prison places would be between pound85000 and
pound127500 per annum (ie the pound42500 average costs of a prison place times either two or three
places depending on whether offenders are released early at the halfway or two-thirds point of
their sentence)
50 It is important to remember however that the purpose of TEPOs and TEROs is to
prevent further trafficking and exploitation offences occurring A TEPO or TERO will only be
imposed where a court considers that there is a credible risk of an individual committing such a
crime Any costs associated with the imposition and breach of TEPOs and TEROs needs to be
offset against the potential costs of prosecutions If each TEPO or TERO prevents the costs of a
conviction for an offence as set out in Part 1 above the costs to the Scottish Administration
would be at least cost neutral in terms of saved court and prison places expenditure
34
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
Costs on other bodies individuals and businesses
51 There will be no costs on other bodies businesses or other individuals as a consequence
of these sections
Costs on local authorities
52 There will be no new costs on local authorities as a consequence of these sections
PART 5 - STRATEGY AND REPORTING
Ensure a strategic cross-agency approach to tackling trafficking
53 The Bill places a duty on the Scottish Ministers to prepare publish and regularly review
and update a trafficking and exploitation strategy to assist in ensuring a co-ordinated and
strategic approach to this issue The provisions place a duty on Ministers to consult with such
organisations and individuals as they consider to have a relevant interest in the issues of human
trafficking and exploitation The Bill places a duty on relevant public bodies to be named in
regulations to assist in the preparation and review of the strategy
54 The Bill will place a duty on relevant public authorities to provide anonymised data about
potential human trafficking and exploitation victims to Police Scotland
Costs on the Scottish Administration
55 Activity arising from these provisions within the Bill will build on the activity and
current resources already committed to this area of work
56 Based on similar activities the estimated additional costs to the Scottish Ministers of
preparing and reviewing a trafficking and exploitation strategy will be approximately pound25000
every three years Alongside the preparation and publication of the strategy the Scottish
Ministers would also propose to support additional awareness raising and training activity to
build on the existing awareness raising and training activity already undertaken by relevant
organisations including the NHS Police Scotland and COPFS Consideration would be given to
how best to co-ordinate these resources alongside existing expenditure and activity For the
purposes of the Financial Memorandum and based on current activity additional costs on top of
existing activity are estimated at approximately pound100000 to pound250000 per annum over the first
four years of the Bill This is based on the best estimated costs of preparing and publishing
publicity and guidance material averaged over a number of years The exact costs will depend
on decisions taken in dialogue with stakeholders as part of the preparation of the strategy
57 The Scottish Government anticipates that the costs to relevant public authorities of
providing anonymised data about potential human trafficking victims to Police Scotland will be
marginal Costs to Police Scotland of collating this data will form part of their existing
intelligence gathering activity
35
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
Costs on other bodies individuals and businesses
58 There will be some costs on other bodies individuals and businesses in engaging with the
Scottish Ministers in the preparation and publication of the Strategy For business and
individuals this will be voluntary depending on their willingness to engage For public bodies
their level of engagement will depend on the relevance of the issue of trafficking and
exploitation to their work and their potential contribution to combating this behaviour Any
additional costs are expected to fit within or sit alongside their existing responsibilities for
example with reference to promoting and ensuring equalities and the application of human
rights obligations
Costs on local authorities
59 There will be costs on local authorities associated with engaging in the preparation and
review of the trafficking and exploitation strategy and in awareness raising and training of front-
line staff The additional costs should be marginal on top of the existing guidance and activity
already in place with reference to the identification and support of potential child victims of
trafficking The aim will be to minimise costs for other front-line local authority staff by
adapting the general awareness raising and training materials described above
SUMMARY
60 The table below provides a summary of the costs of each element of the Bill as described
above
Table 7 Summary table of costs for each aspect of the Bill (pound000)
Year 1 Year 2 Year 3 Year 4
Clarifying amp
Strengthening the
Criminal Law ndash Para 28 pound20-pound353 pound190- pound693 pound360-pound900 pound360-pound1073
Ensure the rights of
victims to access and
support - Para 36 pound70-pound140 pound140-pound280 pound220-pound430 pound290-pound580
Introduce new measures to
disrupt and prevent
trafficking pound016
pound0 pound0 pound0
Ensure a strategic cross
agency approach to
tackling trafficking ndash Para
56 pound125-pound275 pound100-pound250 pound100-pound250 pound125-pound275
TOTAL pound215-pound768 pound430-pound1223 pound680-pound1580 pound775-pound1928
16
The Scottish Government considers that the overall costs are at least cost neutral ndash see paragraphs 45 to 50
36
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December
SCOTTISH GOVERNMENT STATEMENT ON LEGISLATIVE
COMPETENCE
On 11 December 2014 the Cabinet Secretary for Justice (Michael Matheson MSP) made the
following statement
―In my view the provisions of the Human Trafficking and Exploitation (Scotland) Bill
would be within the legislative competence of the Scottish Parliament
mdashmdashmdashmdashmdashmdashmdashmdashmdashmdash
PRESIDING OFFICERrsquoS STATEMENT ON LEGISLATIVE
COMPETENCE
On 11 December 2014 the Presiding Officer (Rt Hon Tricia Marwick MSP) made the following
statement
―In my view the provisions of the Human Trafficking and Exploitation (Scotland) Bill
would be within the legislative competence of the Scottish Parliament
37
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December
SP Bill 57ndashEN Session 4 (2014)
HUMAN TRAFFICKING AND EXPLOITATION
(SCOTLAND) BILL
EXPLANATORY NOTES
(AND OTHER ACCOMPANYING DOCUMENTS)
Parliamentary copyright Scottish Parliamentary Corporate Body
Information on the Scottish Parliamentrsquos copyright policy can be found on the website -
wwwscottishparliamentuk
Produced and published in Scotland on behalf of the Scottish Parliamentary Corporate Body by APS
Group Scotland
ISBN 978-1-78534-569-2
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
number of future convictions or what sentencing decisions might be taken by courts in individual
cases
28 The table below illustrates the potential cost implications of either maintaining or
increasing the current maximum number of convictions in any individual year from four to eight
convictions For the purpose of the calculation it is assumed that the average custodial sentence
length for trafficking and exploitation offences will increase from two years and four months
(classified as a short-term sentence) to over four years (classified as a long-term sentence) as
increasing the maximum sentence to life imprisonment is anticipated to increase the average
sentence for a trafficking offence The estimated average annual cost of a prison place based on
SPS figures is pound42500 Taking account of the current early release arrangements for long-term
prisoners and the overlapping of individual sentences would result in an estimated increase of 8
to 21 total prison places each year after four years ndash ie with an additional four people receiving
custodial sentences each year and released by the Parole Board at the halfway point of their
sentence or automatically at the two-thirds point The total costs to the SPS will be within a
range of pound340000 to pound890000 These costs will fit within the overall budget costs to the SPS
As at 17 October 2014 there were 7731 people in custody in Scotland An additional 21 places
accounts for 03 of the total prison population
Table 4 Estimated range of costs to the Scottish Prison Service from increasing the
number and average length of successful prosecutions for trafficking offences
Year 1 Year 2 Year 3 Year 4
Additional Prison places 0-4 4-12 8-17 8-21
Additional Cost (pound000) pound0-pound170 pound170- pound510 pound340-pound720 pound340-pound890
Table 5 Estimated range of combined costs for trial procedures and prison places
Year 1 Year 2 Year 3 Year 4
Additional Cost (pound000) pound20-pound353 pound190- pound693 pound360-pound900 pound360-pound1073
Costs on other bodies individuals and businesses
29 There will be no new costs falling on other bodies individuals and businesses as a
consequence of these sections but see the section below with reference to victim support
Costs on local authorities
30 There will be no new costs falling on local authorities as a consequence of these specific
sections
PART 2 - PROTECTION OF VICTIMS
Duty on the Lord Advocate to publish guidance about the prosecution of credible trafficking and
exploitation victims who have committed offences
Costs on the Scottish Administration
31 As noted above the Lord Advocate already prepares and publishes guidance to fiscals
about the prosecution of credible victims of human trafficking for crimes committed as a direct
30
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
consequence of their trafficking status The requirement to publish such guidance would in
future be statutory However there will be no new costs on the Scottish Government or the
COPFS as a consequence of placing the requirement for the Lord Advocate to issue this
guidance on a statutory basis
Costs on other bodies individuals and businesses
32 There will be no new costs falling on other bodies individuals and businesses as a
consequence of these sections
Costs on local authorities
33 There will be no new costs falling on local authorities as a consequence of these sections
Ensure the rights of victims to access and support
34 The Bill will place a statutory duty on the Scottish Ministers to secure the provision of
relevant immediate support and recovery services for adult victims of trafficking subject to an
assessment of need The Bill will specify those victims or potential victims entitled to support
and the minimum time periods during which such services should be provided Specifically the
Bill will require Ministers to provide support and assistance based on each individualrsquos assessed
needs during the recovery and reflection period (currently 45 days) during which the
individualrsquos trafficking status is determined The Bill specifies minimum support and assistance
that should be considered as part of the assessment including access to housing treatment
interpretation services etc The Scottish Ministers have the flexibility to provide support and
assistance outwith the specified reflection and recovery period where this is considered
appropriate
35 As noted above the Scottish Ministers already provide grant funding totalling pound723000
to third sector organisations to assist identified adult potential victims of trafficking Provision of
support to adult victims will be placed on a statutory basis The number of adult potential victims
of trafficking referred through the NRM during 2013 was 77 although not all of these will have
requested assistance or received the full range of support services It is assumed that other
actions arising from the Bill including the single offence and publication of the trafficking and
exploitation strategy will result over time in an increase in identified victims and requests for
assistance and support
Costs on the Scottish Administration
36 The Scottish Government anticipates that improved awareness raising and training of
front-line staff will result in an increase in the number of victims identified over time It is not
possible to know how quickly this improvement will be achieved However between 2012 and
2013 the number of potential identified victims across the UK identified through the NCA
strategic assessment and NRM increased by 22 and 41 respectively Given the need for
awareness raising and training to impact the Scottish Government does not anticipate a similar
scale of increase in the immediate term but the Government considers it reasonable to anticipate
a possible increase of between 10 and 20 per annum in the overall number of requests for
assistance and support each year over the next four years Assuming a similar mix of needs as
31
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
current victims the increased costs to the Scottish Government on top of existing funding
would range between pound290000 to pound580000 per annum by year four
Table 6 Estimated range of costs increases for victim support and assistance (pound000)
Year 1 Year 2 Year 3 Year 4
Additional Cost (pound000) pound0-pound140 pound140-pound280 pound220-pound430 pound290-pound580
Costs on other bodies individuals and businesses
37 There will be no additional costs on other public bodies individuals or businesses
associated with these specific provisions There will be no direct additional costs falling on third
sector organisations as a consequence of the specific provisions It is likely however that all or
part of the additional funding identified above will be directed by the Scottish Government
through relevant third sector organisations with the expertise to provide immediate support and
protection to victims
Costs on local authorities
38 The Bill creates no new legislative requirements for the delivery of childrenrsquos services
recognising that this already exists It is therefore not anticipated that the Bill will result in any
quantifiable additional costs on local authorities or other public bodies as a result of support for
child victims Child victims of trafficking are supported as part of the Getting It Right for Every
Child (GIRFEC) approach any child whether identified as trafficked or not will be assessed on
the basis of its needs It is anticipated that as a consequence of the strategy (for which the Bill
provides) that more children may be identified as trafficked It is noted however that various
reports including most recently the UK Governmentrsquos NRM Review Report15
have found that
children who are already receiving support from relevant authorities in the UK are often not
identified as trafficked victims because of lack of awareness of the referral process It may be
that actions arising from the development of the strategy and dialogue with stakeholders will
give rise to additional activity or costs with reference to child victims of trafficking but these are
not known and cannot be estimated at this time
PART 3 - CONFISCATION OF PROPERTY
39 The Bill will provide police with powers to detain the property such as cars boats etc of
a person arrested for a trafficking offence This power will be exercised at the time of arrest and
is not expected to impose any additional costs on the police or others
Costs on the Scottish Administration
40 There will be no additional costs on the Scottish Government as a result of these
provisions Individuals can apply to the court to have vehicles ships or aircraft released from
detention This will be considered as part of the overall case and will not add to the costs to the
criminal justice system
15
httpsnrmhomeofficegovuk
32
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
Costs on other bodies individuals and businesses
41 There will be no additional costs on other public bodies individuals or businesses
including Police Scotland as a result of these specific provisions
Costs on local authorities
42 There will be no additional costs on local authorities as a result of these specific
provisions
PART 4 - TRAFFICKING AND EXPLOITATION PREVENTION AND RISK ORDERS
Introduce new measures to disrupt and prevent trafficking and exploitation
43 The Bill will introduce two new civil orders and associated interim orders to assist in
preventing trafficking and exploitation Trafficking and Exploitation Prevention Orders (TEPOs)
and Trafficking and Exploitation Risk Orders (TEROs) Where an individual has been convicted
of a trafficking or exploitation offence or an offence with a statutory trafficking aggravator a
TEPO may be imposed by a court where there is a risk that that individual may commit a further
human trafficking offence and it is necessary to make the order to protect people from the
physical or psychological harm which might occur if such an offence were committed The
TEPO will prevent the individual from engaging in activities described in the order Where a
person has not been convicted of a trafficking or exploitation offence but a court considers that
the person presents a significant risk of harm to others through the individual committing a
trafficking or exploitation offence the court can impose a TERO restricting specific activities or
imposing requirements These orders will be civil but breach of an order will constitute a
criminal offence with a maximum penalty of five years in prison available to the court
44 The Bill will categorise the trafficking and exploitation offences as lifestyle offences in
order to automatically trigger provisions within the Proceeds of Crime Act 2002 (―the 2002
Act) The definition of an offence as a ―lifestyle offence allows for proceedings under the
2002 Act to confiscate assets or monies from the individual convicted of the offence
Costs on the Scottish Administration
45 The purpose of TEPOs and TEROs is to prevent criminal activity associated with
trafficking and exploitation from arising There will be some cost implications for law
enforcement organisations which will need to monitor the terms of any order imposed by the
courts However these will be offset by the savings made from being able to intervene at an
early stage of criminality if an order has been breached For the equivalent civil orders within the
UK Modern Slavery Bill the UK Government has estimated potential net savings of between
pound130000 and pound1090000 per annum The Scottish Government has not incorporated any
savings for the purpose of Scottish legislation but expects the costs of implementing TEPOs and
TEROs and detention powers to be at least cost neutral for the Scottish Administration and other
public bodies
33
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
46 The Bill will give courts powers to impose a TEPO at the time of sentencing There will
be no immediate additional costs for the courts or COPFS associated with TEPOs imposed as
part of sentencing The Chief Constable of Police Scotland will also be able to apply to the court
for a TEPO to be imposed on a relevant offender previously convicted of a trafficking offence
There will be costs to Police Scotland in making the application and to the SCS and to SLAB in
considering the application As there have been only six previous convictions for trafficking
offences in Scotland the Scottish Government expects the number of applications for TEPOs for
previous convictions to be small one-off and will not add to the overall costs of the criminal
justice system The Chief Constable of Police Scotland can also apply to the court for a TERO
against an individual where it is considered that that individual is likely to commit a trafficking
offence
47 Looking at the equivalent costs for similar civil orders eg Sexual Offences Prevention
Orders the total costs to the SCS the COPFS and SLAB of applying for a TERO or post-
sentencing TEPO are estimated at between pound1000 and pound6000 per order It is not possible to
know how many TEPOs or TEROs might be applied for but assuming a number half the level of
the estimated maximum number of potential convictions for trafficking offences each year (four
to eight) would give estimated costs of between pound2000 (2 x pound1000) and pound24000 (4 x pound6000)
per annum
48 There will be costs to Police Scotland in monitoring TEPOs and TEROs whether
imposed at the time of sentence or by application but this will sit alongside Police Scotlandrsquos
existing crime prevention and investigative responsibilities and is not expected to add to
manpower costs
49 In addition to the costs of imposing and monitoring TEPOs and TEROs there will be
costs associated with prosecuting a breach of a TEPO or TERO Analysis in England and Wales
indicates that breaches of equivalent Serious Crime Prevention Orders are relatively low
Assuming one breach per annum the total combined costs to the COPFS the SCS and SLAB
would be between pound8400 and pound78100 per annum (see the combined costs for either sheriff
court or High Court procedures set out in Table 3 above) Assuming a maximum sentence of
five years the costs to the SPS for additional prison places would be between pound85000 and
pound127500 per annum (ie the pound42500 average costs of a prison place times either two or three
places depending on whether offenders are released early at the halfway or two-thirds point of
their sentence)
50 It is important to remember however that the purpose of TEPOs and TEROs is to
prevent further trafficking and exploitation offences occurring A TEPO or TERO will only be
imposed where a court considers that there is a credible risk of an individual committing such a
crime Any costs associated with the imposition and breach of TEPOs and TEROs needs to be
offset against the potential costs of prosecutions If each TEPO or TERO prevents the costs of a
conviction for an offence as set out in Part 1 above the costs to the Scottish Administration
would be at least cost neutral in terms of saved court and prison places expenditure
34
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
Costs on other bodies individuals and businesses
51 There will be no costs on other bodies businesses or other individuals as a consequence
of these sections
Costs on local authorities
52 There will be no new costs on local authorities as a consequence of these sections
PART 5 - STRATEGY AND REPORTING
Ensure a strategic cross-agency approach to tackling trafficking
53 The Bill places a duty on the Scottish Ministers to prepare publish and regularly review
and update a trafficking and exploitation strategy to assist in ensuring a co-ordinated and
strategic approach to this issue The provisions place a duty on Ministers to consult with such
organisations and individuals as they consider to have a relevant interest in the issues of human
trafficking and exploitation The Bill places a duty on relevant public bodies to be named in
regulations to assist in the preparation and review of the strategy
54 The Bill will place a duty on relevant public authorities to provide anonymised data about
potential human trafficking and exploitation victims to Police Scotland
Costs on the Scottish Administration
55 Activity arising from these provisions within the Bill will build on the activity and
current resources already committed to this area of work
56 Based on similar activities the estimated additional costs to the Scottish Ministers of
preparing and reviewing a trafficking and exploitation strategy will be approximately pound25000
every three years Alongside the preparation and publication of the strategy the Scottish
Ministers would also propose to support additional awareness raising and training activity to
build on the existing awareness raising and training activity already undertaken by relevant
organisations including the NHS Police Scotland and COPFS Consideration would be given to
how best to co-ordinate these resources alongside existing expenditure and activity For the
purposes of the Financial Memorandum and based on current activity additional costs on top of
existing activity are estimated at approximately pound100000 to pound250000 per annum over the first
four years of the Bill This is based on the best estimated costs of preparing and publishing
publicity and guidance material averaged over a number of years The exact costs will depend
on decisions taken in dialogue with stakeholders as part of the preparation of the strategy
57 The Scottish Government anticipates that the costs to relevant public authorities of
providing anonymised data about potential human trafficking victims to Police Scotland will be
marginal Costs to Police Scotland of collating this data will form part of their existing
intelligence gathering activity
35
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
Costs on other bodies individuals and businesses
58 There will be some costs on other bodies individuals and businesses in engaging with the
Scottish Ministers in the preparation and publication of the Strategy For business and
individuals this will be voluntary depending on their willingness to engage For public bodies
their level of engagement will depend on the relevance of the issue of trafficking and
exploitation to their work and their potential contribution to combating this behaviour Any
additional costs are expected to fit within or sit alongside their existing responsibilities for
example with reference to promoting and ensuring equalities and the application of human
rights obligations
Costs on local authorities
59 There will be costs on local authorities associated with engaging in the preparation and
review of the trafficking and exploitation strategy and in awareness raising and training of front-
line staff The additional costs should be marginal on top of the existing guidance and activity
already in place with reference to the identification and support of potential child victims of
trafficking The aim will be to minimise costs for other front-line local authority staff by
adapting the general awareness raising and training materials described above
SUMMARY
60 The table below provides a summary of the costs of each element of the Bill as described
above
Table 7 Summary table of costs for each aspect of the Bill (pound000)
Year 1 Year 2 Year 3 Year 4
Clarifying amp
Strengthening the
Criminal Law ndash Para 28 pound20-pound353 pound190- pound693 pound360-pound900 pound360-pound1073
Ensure the rights of
victims to access and
support - Para 36 pound70-pound140 pound140-pound280 pound220-pound430 pound290-pound580
Introduce new measures to
disrupt and prevent
trafficking pound016
pound0 pound0 pound0
Ensure a strategic cross
agency approach to
tackling trafficking ndash Para
56 pound125-pound275 pound100-pound250 pound100-pound250 pound125-pound275
TOTAL pound215-pound768 pound430-pound1223 pound680-pound1580 pound775-pound1928
16
The Scottish Government considers that the overall costs are at least cost neutral ndash see paragraphs 45 to 50
36
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December
SCOTTISH GOVERNMENT STATEMENT ON LEGISLATIVE
COMPETENCE
On 11 December 2014 the Cabinet Secretary for Justice (Michael Matheson MSP) made the
following statement
―In my view the provisions of the Human Trafficking and Exploitation (Scotland) Bill
would be within the legislative competence of the Scottish Parliament
mdashmdashmdashmdashmdashmdashmdashmdashmdashmdash
PRESIDING OFFICERrsquoS STATEMENT ON LEGISLATIVE
COMPETENCE
On 11 December 2014 the Presiding Officer (Rt Hon Tricia Marwick MSP) made the following
statement
―In my view the provisions of the Human Trafficking and Exploitation (Scotland) Bill
would be within the legislative competence of the Scottish Parliament
37
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December
SP Bill 57ndashEN Session 4 (2014)
HUMAN TRAFFICKING AND EXPLOITATION
(SCOTLAND) BILL
EXPLANATORY NOTES
(AND OTHER ACCOMPANYING DOCUMENTS)
Parliamentary copyright Scottish Parliamentary Corporate Body
Information on the Scottish Parliamentrsquos copyright policy can be found on the website -
wwwscottishparliamentuk
Produced and published in Scotland on behalf of the Scottish Parliamentary Corporate Body by APS
Group Scotland
ISBN 978-1-78534-569-2
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
consequence of their trafficking status The requirement to publish such guidance would in
future be statutory However there will be no new costs on the Scottish Government or the
COPFS as a consequence of placing the requirement for the Lord Advocate to issue this
guidance on a statutory basis
Costs on other bodies individuals and businesses
32 There will be no new costs falling on other bodies individuals and businesses as a
consequence of these sections
Costs on local authorities
33 There will be no new costs falling on local authorities as a consequence of these sections
Ensure the rights of victims to access and support
34 The Bill will place a statutory duty on the Scottish Ministers to secure the provision of
relevant immediate support and recovery services for adult victims of trafficking subject to an
assessment of need The Bill will specify those victims or potential victims entitled to support
and the minimum time periods during which such services should be provided Specifically the
Bill will require Ministers to provide support and assistance based on each individualrsquos assessed
needs during the recovery and reflection period (currently 45 days) during which the
individualrsquos trafficking status is determined The Bill specifies minimum support and assistance
that should be considered as part of the assessment including access to housing treatment
interpretation services etc The Scottish Ministers have the flexibility to provide support and
assistance outwith the specified reflection and recovery period where this is considered
appropriate
35 As noted above the Scottish Ministers already provide grant funding totalling pound723000
to third sector organisations to assist identified adult potential victims of trafficking Provision of
support to adult victims will be placed on a statutory basis The number of adult potential victims
of trafficking referred through the NRM during 2013 was 77 although not all of these will have
requested assistance or received the full range of support services It is assumed that other
actions arising from the Bill including the single offence and publication of the trafficking and
exploitation strategy will result over time in an increase in identified victims and requests for
assistance and support
Costs on the Scottish Administration
36 The Scottish Government anticipates that improved awareness raising and training of
front-line staff will result in an increase in the number of victims identified over time It is not
possible to know how quickly this improvement will be achieved However between 2012 and
2013 the number of potential identified victims across the UK identified through the NCA
strategic assessment and NRM increased by 22 and 41 respectively Given the need for
awareness raising and training to impact the Scottish Government does not anticipate a similar
scale of increase in the immediate term but the Government considers it reasonable to anticipate
a possible increase of between 10 and 20 per annum in the overall number of requests for
assistance and support each year over the next four years Assuming a similar mix of needs as
31
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
current victims the increased costs to the Scottish Government on top of existing funding
would range between pound290000 to pound580000 per annum by year four
Table 6 Estimated range of costs increases for victim support and assistance (pound000)
Year 1 Year 2 Year 3 Year 4
Additional Cost (pound000) pound0-pound140 pound140-pound280 pound220-pound430 pound290-pound580
Costs on other bodies individuals and businesses
37 There will be no additional costs on other public bodies individuals or businesses
associated with these specific provisions There will be no direct additional costs falling on third
sector organisations as a consequence of the specific provisions It is likely however that all or
part of the additional funding identified above will be directed by the Scottish Government
through relevant third sector organisations with the expertise to provide immediate support and
protection to victims
Costs on local authorities
38 The Bill creates no new legislative requirements for the delivery of childrenrsquos services
recognising that this already exists It is therefore not anticipated that the Bill will result in any
quantifiable additional costs on local authorities or other public bodies as a result of support for
child victims Child victims of trafficking are supported as part of the Getting It Right for Every
Child (GIRFEC) approach any child whether identified as trafficked or not will be assessed on
the basis of its needs It is anticipated that as a consequence of the strategy (for which the Bill
provides) that more children may be identified as trafficked It is noted however that various
reports including most recently the UK Governmentrsquos NRM Review Report15
have found that
children who are already receiving support from relevant authorities in the UK are often not
identified as trafficked victims because of lack of awareness of the referral process It may be
that actions arising from the development of the strategy and dialogue with stakeholders will
give rise to additional activity or costs with reference to child victims of trafficking but these are
not known and cannot be estimated at this time
PART 3 - CONFISCATION OF PROPERTY
39 The Bill will provide police with powers to detain the property such as cars boats etc of
a person arrested for a trafficking offence This power will be exercised at the time of arrest and
is not expected to impose any additional costs on the police or others
Costs on the Scottish Administration
40 There will be no additional costs on the Scottish Government as a result of these
provisions Individuals can apply to the court to have vehicles ships or aircraft released from
detention This will be considered as part of the overall case and will not add to the costs to the
criminal justice system
15
httpsnrmhomeofficegovuk
32
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
Costs on other bodies individuals and businesses
41 There will be no additional costs on other public bodies individuals or businesses
including Police Scotland as a result of these specific provisions
Costs on local authorities
42 There will be no additional costs on local authorities as a result of these specific
provisions
PART 4 - TRAFFICKING AND EXPLOITATION PREVENTION AND RISK ORDERS
Introduce new measures to disrupt and prevent trafficking and exploitation
43 The Bill will introduce two new civil orders and associated interim orders to assist in
preventing trafficking and exploitation Trafficking and Exploitation Prevention Orders (TEPOs)
and Trafficking and Exploitation Risk Orders (TEROs) Where an individual has been convicted
of a trafficking or exploitation offence or an offence with a statutory trafficking aggravator a
TEPO may be imposed by a court where there is a risk that that individual may commit a further
human trafficking offence and it is necessary to make the order to protect people from the
physical or psychological harm which might occur if such an offence were committed The
TEPO will prevent the individual from engaging in activities described in the order Where a
person has not been convicted of a trafficking or exploitation offence but a court considers that
the person presents a significant risk of harm to others through the individual committing a
trafficking or exploitation offence the court can impose a TERO restricting specific activities or
imposing requirements These orders will be civil but breach of an order will constitute a
criminal offence with a maximum penalty of five years in prison available to the court
44 The Bill will categorise the trafficking and exploitation offences as lifestyle offences in
order to automatically trigger provisions within the Proceeds of Crime Act 2002 (―the 2002
Act) The definition of an offence as a ―lifestyle offence allows for proceedings under the
2002 Act to confiscate assets or monies from the individual convicted of the offence
Costs on the Scottish Administration
45 The purpose of TEPOs and TEROs is to prevent criminal activity associated with
trafficking and exploitation from arising There will be some cost implications for law
enforcement organisations which will need to monitor the terms of any order imposed by the
courts However these will be offset by the savings made from being able to intervene at an
early stage of criminality if an order has been breached For the equivalent civil orders within the
UK Modern Slavery Bill the UK Government has estimated potential net savings of between
pound130000 and pound1090000 per annum The Scottish Government has not incorporated any
savings for the purpose of Scottish legislation but expects the costs of implementing TEPOs and
TEROs and detention powers to be at least cost neutral for the Scottish Administration and other
public bodies
33
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
46 The Bill will give courts powers to impose a TEPO at the time of sentencing There will
be no immediate additional costs for the courts or COPFS associated with TEPOs imposed as
part of sentencing The Chief Constable of Police Scotland will also be able to apply to the court
for a TEPO to be imposed on a relevant offender previously convicted of a trafficking offence
There will be costs to Police Scotland in making the application and to the SCS and to SLAB in
considering the application As there have been only six previous convictions for trafficking
offences in Scotland the Scottish Government expects the number of applications for TEPOs for
previous convictions to be small one-off and will not add to the overall costs of the criminal
justice system The Chief Constable of Police Scotland can also apply to the court for a TERO
against an individual where it is considered that that individual is likely to commit a trafficking
offence
47 Looking at the equivalent costs for similar civil orders eg Sexual Offences Prevention
Orders the total costs to the SCS the COPFS and SLAB of applying for a TERO or post-
sentencing TEPO are estimated at between pound1000 and pound6000 per order It is not possible to
know how many TEPOs or TEROs might be applied for but assuming a number half the level of
the estimated maximum number of potential convictions for trafficking offences each year (four
to eight) would give estimated costs of between pound2000 (2 x pound1000) and pound24000 (4 x pound6000)
per annum
48 There will be costs to Police Scotland in monitoring TEPOs and TEROs whether
imposed at the time of sentence or by application but this will sit alongside Police Scotlandrsquos
existing crime prevention and investigative responsibilities and is not expected to add to
manpower costs
49 In addition to the costs of imposing and monitoring TEPOs and TEROs there will be
costs associated with prosecuting a breach of a TEPO or TERO Analysis in England and Wales
indicates that breaches of equivalent Serious Crime Prevention Orders are relatively low
Assuming one breach per annum the total combined costs to the COPFS the SCS and SLAB
would be between pound8400 and pound78100 per annum (see the combined costs for either sheriff
court or High Court procedures set out in Table 3 above) Assuming a maximum sentence of
five years the costs to the SPS for additional prison places would be between pound85000 and
pound127500 per annum (ie the pound42500 average costs of a prison place times either two or three
places depending on whether offenders are released early at the halfway or two-thirds point of
their sentence)
50 It is important to remember however that the purpose of TEPOs and TEROs is to
prevent further trafficking and exploitation offences occurring A TEPO or TERO will only be
imposed where a court considers that there is a credible risk of an individual committing such a
crime Any costs associated with the imposition and breach of TEPOs and TEROs needs to be
offset against the potential costs of prosecutions If each TEPO or TERO prevents the costs of a
conviction for an offence as set out in Part 1 above the costs to the Scottish Administration
would be at least cost neutral in terms of saved court and prison places expenditure
34
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
Costs on other bodies individuals and businesses
51 There will be no costs on other bodies businesses or other individuals as a consequence
of these sections
Costs on local authorities
52 There will be no new costs on local authorities as a consequence of these sections
PART 5 - STRATEGY AND REPORTING
Ensure a strategic cross-agency approach to tackling trafficking
53 The Bill places a duty on the Scottish Ministers to prepare publish and regularly review
and update a trafficking and exploitation strategy to assist in ensuring a co-ordinated and
strategic approach to this issue The provisions place a duty on Ministers to consult with such
organisations and individuals as they consider to have a relevant interest in the issues of human
trafficking and exploitation The Bill places a duty on relevant public bodies to be named in
regulations to assist in the preparation and review of the strategy
54 The Bill will place a duty on relevant public authorities to provide anonymised data about
potential human trafficking and exploitation victims to Police Scotland
Costs on the Scottish Administration
55 Activity arising from these provisions within the Bill will build on the activity and
current resources already committed to this area of work
56 Based on similar activities the estimated additional costs to the Scottish Ministers of
preparing and reviewing a trafficking and exploitation strategy will be approximately pound25000
every three years Alongside the preparation and publication of the strategy the Scottish
Ministers would also propose to support additional awareness raising and training activity to
build on the existing awareness raising and training activity already undertaken by relevant
organisations including the NHS Police Scotland and COPFS Consideration would be given to
how best to co-ordinate these resources alongside existing expenditure and activity For the
purposes of the Financial Memorandum and based on current activity additional costs on top of
existing activity are estimated at approximately pound100000 to pound250000 per annum over the first
four years of the Bill This is based on the best estimated costs of preparing and publishing
publicity and guidance material averaged over a number of years The exact costs will depend
on decisions taken in dialogue with stakeholders as part of the preparation of the strategy
57 The Scottish Government anticipates that the costs to relevant public authorities of
providing anonymised data about potential human trafficking victims to Police Scotland will be
marginal Costs to Police Scotland of collating this data will form part of their existing
intelligence gathering activity
35
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
Costs on other bodies individuals and businesses
58 There will be some costs on other bodies individuals and businesses in engaging with the
Scottish Ministers in the preparation and publication of the Strategy For business and
individuals this will be voluntary depending on their willingness to engage For public bodies
their level of engagement will depend on the relevance of the issue of trafficking and
exploitation to their work and their potential contribution to combating this behaviour Any
additional costs are expected to fit within or sit alongside their existing responsibilities for
example with reference to promoting and ensuring equalities and the application of human
rights obligations
Costs on local authorities
59 There will be costs on local authorities associated with engaging in the preparation and
review of the trafficking and exploitation strategy and in awareness raising and training of front-
line staff The additional costs should be marginal on top of the existing guidance and activity
already in place with reference to the identification and support of potential child victims of
trafficking The aim will be to minimise costs for other front-line local authority staff by
adapting the general awareness raising and training materials described above
SUMMARY
60 The table below provides a summary of the costs of each element of the Bill as described
above
Table 7 Summary table of costs for each aspect of the Bill (pound000)
Year 1 Year 2 Year 3 Year 4
Clarifying amp
Strengthening the
Criminal Law ndash Para 28 pound20-pound353 pound190- pound693 pound360-pound900 pound360-pound1073
Ensure the rights of
victims to access and
support - Para 36 pound70-pound140 pound140-pound280 pound220-pound430 pound290-pound580
Introduce new measures to
disrupt and prevent
trafficking pound016
pound0 pound0 pound0
Ensure a strategic cross
agency approach to
tackling trafficking ndash Para
56 pound125-pound275 pound100-pound250 pound100-pound250 pound125-pound275
TOTAL pound215-pound768 pound430-pound1223 pound680-pound1580 pound775-pound1928
16
The Scottish Government considers that the overall costs are at least cost neutral ndash see paragraphs 45 to 50
36
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December
SCOTTISH GOVERNMENT STATEMENT ON LEGISLATIVE
COMPETENCE
On 11 December 2014 the Cabinet Secretary for Justice (Michael Matheson MSP) made the
following statement
―In my view the provisions of the Human Trafficking and Exploitation (Scotland) Bill
would be within the legislative competence of the Scottish Parliament
mdashmdashmdashmdashmdashmdashmdashmdashmdashmdash
PRESIDING OFFICERrsquoS STATEMENT ON LEGISLATIVE
COMPETENCE
On 11 December 2014 the Presiding Officer (Rt Hon Tricia Marwick MSP) made the following
statement
―In my view the provisions of the Human Trafficking and Exploitation (Scotland) Bill
would be within the legislative competence of the Scottish Parliament
37
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December
SP Bill 57ndashEN Session 4 (2014)
HUMAN TRAFFICKING AND EXPLOITATION
(SCOTLAND) BILL
EXPLANATORY NOTES
(AND OTHER ACCOMPANYING DOCUMENTS)
Parliamentary copyright Scottish Parliamentary Corporate Body
Information on the Scottish Parliamentrsquos copyright policy can be found on the website -
wwwscottishparliamentuk
Produced and published in Scotland on behalf of the Scottish Parliamentary Corporate Body by APS
Group Scotland
ISBN 978-1-78534-569-2
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
current victims the increased costs to the Scottish Government on top of existing funding
would range between pound290000 to pound580000 per annum by year four
Table 6 Estimated range of costs increases for victim support and assistance (pound000)
Year 1 Year 2 Year 3 Year 4
Additional Cost (pound000) pound0-pound140 pound140-pound280 pound220-pound430 pound290-pound580
Costs on other bodies individuals and businesses
37 There will be no additional costs on other public bodies individuals or businesses
associated with these specific provisions There will be no direct additional costs falling on third
sector organisations as a consequence of the specific provisions It is likely however that all or
part of the additional funding identified above will be directed by the Scottish Government
through relevant third sector organisations with the expertise to provide immediate support and
protection to victims
Costs on local authorities
38 The Bill creates no new legislative requirements for the delivery of childrenrsquos services
recognising that this already exists It is therefore not anticipated that the Bill will result in any
quantifiable additional costs on local authorities or other public bodies as a result of support for
child victims Child victims of trafficking are supported as part of the Getting It Right for Every
Child (GIRFEC) approach any child whether identified as trafficked or not will be assessed on
the basis of its needs It is anticipated that as a consequence of the strategy (for which the Bill
provides) that more children may be identified as trafficked It is noted however that various
reports including most recently the UK Governmentrsquos NRM Review Report15
have found that
children who are already receiving support from relevant authorities in the UK are often not
identified as trafficked victims because of lack of awareness of the referral process It may be
that actions arising from the development of the strategy and dialogue with stakeholders will
give rise to additional activity or costs with reference to child victims of trafficking but these are
not known and cannot be estimated at this time
PART 3 - CONFISCATION OF PROPERTY
39 The Bill will provide police with powers to detain the property such as cars boats etc of
a person arrested for a trafficking offence This power will be exercised at the time of arrest and
is not expected to impose any additional costs on the police or others
Costs on the Scottish Administration
40 There will be no additional costs on the Scottish Government as a result of these
provisions Individuals can apply to the court to have vehicles ships or aircraft released from
detention This will be considered as part of the overall case and will not add to the costs to the
criminal justice system
15
httpsnrmhomeofficegovuk
32
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
Costs on other bodies individuals and businesses
41 There will be no additional costs on other public bodies individuals or businesses
including Police Scotland as a result of these specific provisions
Costs on local authorities
42 There will be no additional costs on local authorities as a result of these specific
provisions
PART 4 - TRAFFICKING AND EXPLOITATION PREVENTION AND RISK ORDERS
Introduce new measures to disrupt and prevent trafficking and exploitation
43 The Bill will introduce two new civil orders and associated interim orders to assist in
preventing trafficking and exploitation Trafficking and Exploitation Prevention Orders (TEPOs)
and Trafficking and Exploitation Risk Orders (TEROs) Where an individual has been convicted
of a trafficking or exploitation offence or an offence with a statutory trafficking aggravator a
TEPO may be imposed by a court where there is a risk that that individual may commit a further
human trafficking offence and it is necessary to make the order to protect people from the
physical or psychological harm which might occur if such an offence were committed The
TEPO will prevent the individual from engaging in activities described in the order Where a
person has not been convicted of a trafficking or exploitation offence but a court considers that
the person presents a significant risk of harm to others through the individual committing a
trafficking or exploitation offence the court can impose a TERO restricting specific activities or
imposing requirements These orders will be civil but breach of an order will constitute a
criminal offence with a maximum penalty of five years in prison available to the court
44 The Bill will categorise the trafficking and exploitation offences as lifestyle offences in
order to automatically trigger provisions within the Proceeds of Crime Act 2002 (―the 2002
Act) The definition of an offence as a ―lifestyle offence allows for proceedings under the
2002 Act to confiscate assets or monies from the individual convicted of the offence
Costs on the Scottish Administration
45 The purpose of TEPOs and TEROs is to prevent criminal activity associated with
trafficking and exploitation from arising There will be some cost implications for law
enforcement organisations which will need to monitor the terms of any order imposed by the
courts However these will be offset by the savings made from being able to intervene at an
early stage of criminality if an order has been breached For the equivalent civil orders within the
UK Modern Slavery Bill the UK Government has estimated potential net savings of between
pound130000 and pound1090000 per annum The Scottish Government has not incorporated any
savings for the purpose of Scottish legislation but expects the costs of implementing TEPOs and
TEROs and detention powers to be at least cost neutral for the Scottish Administration and other
public bodies
33
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
46 The Bill will give courts powers to impose a TEPO at the time of sentencing There will
be no immediate additional costs for the courts or COPFS associated with TEPOs imposed as
part of sentencing The Chief Constable of Police Scotland will also be able to apply to the court
for a TEPO to be imposed on a relevant offender previously convicted of a trafficking offence
There will be costs to Police Scotland in making the application and to the SCS and to SLAB in
considering the application As there have been only six previous convictions for trafficking
offences in Scotland the Scottish Government expects the number of applications for TEPOs for
previous convictions to be small one-off and will not add to the overall costs of the criminal
justice system The Chief Constable of Police Scotland can also apply to the court for a TERO
against an individual where it is considered that that individual is likely to commit a trafficking
offence
47 Looking at the equivalent costs for similar civil orders eg Sexual Offences Prevention
Orders the total costs to the SCS the COPFS and SLAB of applying for a TERO or post-
sentencing TEPO are estimated at between pound1000 and pound6000 per order It is not possible to
know how many TEPOs or TEROs might be applied for but assuming a number half the level of
the estimated maximum number of potential convictions for trafficking offences each year (four
to eight) would give estimated costs of between pound2000 (2 x pound1000) and pound24000 (4 x pound6000)
per annum
48 There will be costs to Police Scotland in monitoring TEPOs and TEROs whether
imposed at the time of sentence or by application but this will sit alongside Police Scotlandrsquos
existing crime prevention and investigative responsibilities and is not expected to add to
manpower costs
49 In addition to the costs of imposing and monitoring TEPOs and TEROs there will be
costs associated with prosecuting a breach of a TEPO or TERO Analysis in England and Wales
indicates that breaches of equivalent Serious Crime Prevention Orders are relatively low
Assuming one breach per annum the total combined costs to the COPFS the SCS and SLAB
would be between pound8400 and pound78100 per annum (see the combined costs for either sheriff
court or High Court procedures set out in Table 3 above) Assuming a maximum sentence of
five years the costs to the SPS for additional prison places would be between pound85000 and
pound127500 per annum (ie the pound42500 average costs of a prison place times either two or three
places depending on whether offenders are released early at the halfway or two-thirds point of
their sentence)
50 It is important to remember however that the purpose of TEPOs and TEROs is to
prevent further trafficking and exploitation offences occurring A TEPO or TERO will only be
imposed where a court considers that there is a credible risk of an individual committing such a
crime Any costs associated with the imposition and breach of TEPOs and TEROs needs to be
offset against the potential costs of prosecutions If each TEPO or TERO prevents the costs of a
conviction for an offence as set out in Part 1 above the costs to the Scottish Administration
would be at least cost neutral in terms of saved court and prison places expenditure
34
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
Costs on other bodies individuals and businesses
51 There will be no costs on other bodies businesses or other individuals as a consequence
of these sections
Costs on local authorities
52 There will be no new costs on local authorities as a consequence of these sections
PART 5 - STRATEGY AND REPORTING
Ensure a strategic cross-agency approach to tackling trafficking
53 The Bill places a duty on the Scottish Ministers to prepare publish and regularly review
and update a trafficking and exploitation strategy to assist in ensuring a co-ordinated and
strategic approach to this issue The provisions place a duty on Ministers to consult with such
organisations and individuals as they consider to have a relevant interest in the issues of human
trafficking and exploitation The Bill places a duty on relevant public bodies to be named in
regulations to assist in the preparation and review of the strategy
54 The Bill will place a duty on relevant public authorities to provide anonymised data about
potential human trafficking and exploitation victims to Police Scotland
Costs on the Scottish Administration
55 Activity arising from these provisions within the Bill will build on the activity and
current resources already committed to this area of work
56 Based on similar activities the estimated additional costs to the Scottish Ministers of
preparing and reviewing a trafficking and exploitation strategy will be approximately pound25000
every three years Alongside the preparation and publication of the strategy the Scottish
Ministers would also propose to support additional awareness raising and training activity to
build on the existing awareness raising and training activity already undertaken by relevant
organisations including the NHS Police Scotland and COPFS Consideration would be given to
how best to co-ordinate these resources alongside existing expenditure and activity For the
purposes of the Financial Memorandum and based on current activity additional costs on top of
existing activity are estimated at approximately pound100000 to pound250000 per annum over the first
four years of the Bill This is based on the best estimated costs of preparing and publishing
publicity and guidance material averaged over a number of years The exact costs will depend
on decisions taken in dialogue with stakeholders as part of the preparation of the strategy
57 The Scottish Government anticipates that the costs to relevant public authorities of
providing anonymised data about potential human trafficking victims to Police Scotland will be
marginal Costs to Police Scotland of collating this data will form part of their existing
intelligence gathering activity
35
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
Costs on other bodies individuals and businesses
58 There will be some costs on other bodies individuals and businesses in engaging with the
Scottish Ministers in the preparation and publication of the Strategy For business and
individuals this will be voluntary depending on their willingness to engage For public bodies
their level of engagement will depend on the relevance of the issue of trafficking and
exploitation to their work and their potential contribution to combating this behaviour Any
additional costs are expected to fit within or sit alongside their existing responsibilities for
example with reference to promoting and ensuring equalities and the application of human
rights obligations
Costs on local authorities
59 There will be costs on local authorities associated with engaging in the preparation and
review of the trafficking and exploitation strategy and in awareness raising and training of front-
line staff The additional costs should be marginal on top of the existing guidance and activity
already in place with reference to the identification and support of potential child victims of
trafficking The aim will be to minimise costs for other front-line local authority staff by
adapting the general awareness raising and training materials described above
SUMMARY
60 The table below provides a summary of the costs of each element of the Bill as described
above
Table 7 Summary table of costs for each aspect of the Bill (pound000)
Year 1 Year 2 Year 3 Year 4
Clarifying amp
Strengthening the
Criminal Law ndash Para 28 pound20-pound353 pound190- pound693 pound360-pound900 pound360-pound1073
Ensure the rights of
victims to access and
support - Para 36 pound70-pound140 pound140-pound280 pound220-pound430 pound290-pound580
Introduce new measures to
disrupt and prevent
trafficking pound016
pound0 pound0 pound0
Ensure a strategic cross
agency approach to
tackling trafficking ndash Para
56 pound125-pound275 pound100-pound250 pound100-pound250 pound125-pound275
TOTAL pound215-pound768 pound430-pound1223 pound680-pound1580 pound775-pound1928
16
The Scottish Government considers that the overall costs are at least cost neutral ndash see paragraphs 45 to 50
36
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December
SCOTTISH GOVERNMENT STATEMENT ON LEGISLATIVE
COMPETENCE
On 11 December 2014 the Cabinet Secretary for Justice (Michael Matheson MSP) made the
following statement
―In my view the provisions of the Human Trafficking and Exploitation (Scotland) Bill
would be within the legislative competence of the Scottish Parliament
mdashmdashmdashmdashmdashmdashmdashmdashmdashmdash
PRESIDING OFFICERrsquoS STATEMENT ON LEGISLATIVE
COMPETENCE
On 11 December 2014 the Presiding Officer (Rt Hon Tricia Marwick MSP) made the following
statement
―In my view the provisions of the Human Trafficking and Exploitation (Scotland) Bill
would be within the legislative competence of the Scottish Parliament
37
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December
SP Bill 57ndashEN Session 4 (2014)
HUMAN TRAFFICKING AND EXPLOITATION
(SCOTLAND) BILL
EXPLANATORY NOTES
(AND OTHER ACCOMPANYING DOCUMENTS)
Parliamentary copyright Scottish Parliamentary Corporate Body
Information on the Scottish Parliamentrsquos copyright policy can be found on the website -
wwwscottishparliamentuk
Produced and published in Scotland on behalf of the Scottish Parliamentary Corporate Body by APS
Group Scotland
ISBN 978-1-78534-569-2
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
Costs on other bodies individuals and businesses
41 There will be no additional costs on other public bodies individuals or businesses
including Police Scotland as a result of these specific provisions
Costs on local authorities
42 There will be no additional costs on local authorities as a result of these specific
provisions
PART 4 - TRAFFICKING AND EXPLOITATION PREVENTION AND RISK ORDERS
Introduce new measures to disrupt and prevent trafficking and exploitation
43 The Bill will introduce two new civil orders and associated interim orders to assist in
preventing trafficking and exploitation Trafficking and Exploitation Prevention Orders (TEPOs)
and Trafficking and Exploitation Risk Orders (TEROs) Where an individual has been convicted
of a trafficking or exploitation offence or an offence with a statutory trafficking aggravator a
TEPO may be imposed by a court where there is a risk that that individual may commit a further
human trafficking offence and it is necessary to make the order to protect people from the
physical or psychological harm which might occur if such an offence were committed The
TEPO will prevent the individual from engaging in activities described in the order Where a
person has not been convicted of a trafficking or exploitation offence but a court considers that
the person presents a significant risk of harm to others through the individual committing a
trafficking or exploitation offence the court can impose a TERO restricting specific activities or
imposing requirements These orders will be civil but breach of an order will constitute a
criminal offence with a maximum penalty of five years in prison available to the court
44 The Bill will categorise the trafficking and exploitation offences as lifestyle offences in
order to automatically trigger provisions within the Proceeds of Crime Act 2002 (―the 2002
Act) The definition of an offence as a ―lifestyle offence allows for proceedings under the
2002 Act to confiscate assets or monies from the individual convicted of the offence
Costs on the Scottish Administration
45 The purpose of TEPOs and TEROs is to prevent criminal activity associated with
trafficking and exploitation from arising There will be some cost implications for law
enforcement organisations which will need to monitor the terms of any order imposed by the
courts However these will be offset by the savings made from being able to intervene at an
early stage of criminality if an order has been breached For the equivalent civil orders within the
UK Modern Slavery Bill the UK Government has estimated potential net savings of between
pound130000 and pound1090000 per annum The Scottish Government has not incorporated any
savings for the purpose of Scottish legislation but expects the costs of implementing TEPOs and
TEROs and detention powers to be at least cost neutral for the Scottish Administration and other
public bodies
33
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
46 The Bill will give courts powers to impose a TEPO at the time of sentencing There will
be no immediate additional costs for the courts or COPFS associated with TEPOs imposed as
part of sentencing The Chief Constable of Police Scotland will also be able to apply to the court
for a TEPO to be imposed on a relevant offender previously convicted of a trafficking offence
There will be costs to Police Scotland in making the application and to the SCS and to SLAB in
considering the application As there have been only six previous convictions for trafficking
offences in Scotland the Scottish Government expects the number of applications for TEPOs for
previous convictions to be small one-off and will not add to the overall costs of the criminal
justice system The Chief Constable of Police Scotland can also apply to the court for a TERO
against an individual where it is considered that that individual is likely to commit a trafficking
offence
47 Looking at the equivalent costs for similar civil orders eg Sexual Offences Prevention
Orders the total costs to the SCS the COPFS and SLAB of applying for a TERO or post-
sentencing TEPO are estimated at between pound1000 and pound6000 per order It is not possible to
know how many TEPOs or TEROs might be applied for but assuming a number half the level of
the estimated maximum number of potential convictions for trafficking offences each year (four
to eight) would give estimated costs of between pound2000 (2 x pound1000) and pound24000 (4 x pound6000)
per annum
48 There will be costs to Police Scotland in monitoring TEPOs and TEROs whether
imposed at the time of sentence or by application but this will sit alongside Police Scotlandrsquos
existing crime prevention and investigative responsibilities and is not expected to add to
manpower costs
49 In addition to the costs of imposing and monitoring TEPOs and TEROs there will be
costs associated with prosecuting a breach of a TEPO or TERO Analysis in England and Wales
indicates that breaches of equivalent Serious Crime Prevention Orders are relatively low
Assuming one breach per annum the total combined costs to the COPFS the SCS and SLAB
would be between pound8400 and pound78100 per annum (see the combined costs for either sheriff
court or High Court procedures set out in Table 3 above) Assuming a maximum sentence of
five years the costs to the SPS for additional prison places would be between pound85000 and
pound127500 per annum (ie the pound42500 average costs of a prison place times either two or three
places depending on whether offenders are released early at the halfway or two-thirds point of
their sentence)
50 It is important to remember however that the purpose of TEPOs and TEROs is to
prevent further trafficking and exploitation offences occurring A TEPO or TERO will only be
imposed where a court considers that there is a credible risk of an individual committing such a
crime Any costs associated with the imposition and breach of TEPOs and TEROs needs to be
offset against the potential costs of prosecutions If each TEPO or TERO prevents the costs of a
conviction for an offence as set out in Part 1 above the costs to the Scottish Administration
would be at least cost neutral in terms of saved court and prison places expenditure
34
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
Costs on other bodies individuals and businesses
51 There will be no costs on other bodies businesses or other individuals as a consequence
of these sections
Costs on local authorities
52 There will be no new costs on local authorities as a consequence of these sections
PART 5 - STRATEGY AND REPORTING
Ensure a strategic cross-agency approach to tackling trafficking
53 The Bill places a duty on the Scottish Ministers to prepare publish and regularly review
and update a trafficking and exploitation strategy to assist in ensuring a co-ordinated and
strategic approach to this issue The provisions place a duty on Ministers to consult with such
organisations and individuals as they consider to have a relevant interest in the issues of human
trafficking and exploitation The Bill places a duty on relevant public bodies to be named in
regulations to assist in the preparation and review of the strategy
54 The Bill will place a duty on relevant public authorities to provide anonymised data about
potential human trafficking and exploitation victims to Police Scotland
Costs on the Scottish Administration
55 Activity arising from these provisions within the Bill will build on the activity and
current resources already committed to this area of work
56 Based on similar activities the estimated additional costs to the Scottish Ministers of
preparing and reviewing a trafficking and exploitation strategy will be approximately pound25000
every three years Alongside the preparation and publication of the strategy the Scottish
Ministers would also propose to support additional awareness raising and training activity to
build on the existing awareness raising and training activity already undertaken by relevant
organisations including the NHS Police Scotland and COPFS Consideration would be given to
how best to co-ordinate these resources alongside existing expenditure and activity For the
purposes of the Financial Memorandum and based on current activity additional costs on top of
existing activity are estimated at approximately pound100000 to pound250000 per annum over the first
four years of the Bill This is based on the best estimated costs of preparing and publishing
publicity and guidance material averaged over a number of years The exact costs will depend
on decisions taken in dialogue with stakeholders as part of the preparation of the strategy
57 The Scottish Government anticipates that the costs to relevant public authorities of
providing anonymised data about potential human trafficking victims to Police Scotland will be
marginal Costs to Police Scotland of collating this data will form part of their existing
intelligence gathering activity
35
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
Costs on other bodies individuals and businesses
58 There will be some costs on other bodies individuals and businesses in engaging with the
Scottish Ministers in the preparation and publication of the Strategy For business and
individuals this will be voluntary depending on their willingness to engage For public bodies
their level of engagement will depend on the relevance of the issue of trafficking and
exploitation to their work and their potential contribution to combating this behaviour Any
additional costs are expected to fit within or sit alongside their existing responsibilities for
example with reference to promoting and ensuring equalities and the application of human
rights obligations
Costs on local authorities
59 There will be costs on local authorities associated with engaging in the preparation and
review of the trafficking and exploitation strategy and in awareness raising and training of front-
line staff The additional costs should be marginal on top of the existing guidance and activity
already in place with reference to the identification and support of potential child victims of
trafficking The aim will be to minimise costs for other front-line local authority staff by
adapting the general awareness raising and training materials described above
SUMMARY
60 The table below provides a summary of the costs of each element of the Bill as described
above
Table 7 Summary table of costs for each aspect of the Bill (pound000)
Year 1 Year 2 Year 3 Year 4
Clarifying amp
Strengthening the
Criminal Law ndash Para 28 pound20-pound353 pound190- pound693 pound360-pound900 pound360-pound1073
Ensure the rights of
victims to access and
support - Para 36 pound70-pound140 pound140-pound280 pound220-pound430 pound290-pound580
Introduce new measures to
disrupt and prevent
trafficking pound016
pound0 pound0 pound0
Ensure a strategic cross
agency approach to
tackling trafficking ndash Para
56 pound125-pound275 pound100-pound250 pound100-pound250 pound125-pound275
TOTAL pound215-pound768 pound430-pound1223 pound680-pound1580 pound775-pound1928
16
The Scottish Government considers that the overall costs are at least cost neutral ndash see paragraphs 45 to 50
36
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December
SCOTTISH GOVERNMENT STATEMENT ON LEGISLATIVE
COMPETENCE
On 11 December 2014 the Cabinet Secretary for Justice (Michael Matheson MSP) made the
following statement
―In my view the provisions of the Human Trafficking and Exploitation (Scotland) Bill
would be within the legislative competence of the Scottish Parliament
mdashmdashmdashmdashmdashmdashmdashmdashmdashmdash
PRESIDING OFFICERrsquoS STATEMENT ON LEGISLATIVE
COMPETENCE
On 11 December 2014 the Presiding Officer (Rt Hon Tricia Marwick MSP) made the following
statement
―In my view the provisions of the Human Trafficking and Exploitation (Scotland) Bill
would be within the legislative competence of the Scottish Parliament
37
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December
SP Bill 57ndashEN Session 4 (2014)
HUMAN TRAFFICKING AND EXPLOITATION
(SCOTLAND) BILL
EXPLANATORY NOTES
(AND OTHER ACCOMPANYING DOCUMENTS)
Parliamentary copyright Scottish Parliamentary Corporate Body
Information on the Scottish Parliamentrsquos copyright policy can be found on the website -
wwwscottishparliamentuk
Produced and published in Scotland on behalf of the Scottish Parliamentary Corporate Body by APS
Group Scotland
ISBN 978-1-78534-569-2
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
46 The Bill will give courts powers to impose a TEPO at the time of sentencing There will
be no immediate additional costs for the courts or COPFS associated with TEPOs imposed as
part of sentencing The Chief Constable of Police Scotland will also be able to apply to the court
for a TEPO to be imposed on a relevant offender previously convicted of a trafficking offence
There will be costs to Police Scotland in making the application and to the SCS and to SLAB in
considering the application As there have been only six previous convictions for trafficking
offences in Scotland the Scottish Government expects the number of applications for TEPOs for
previous convictions to be small one-off and will not add to the overall costs of the criminal
justice system The Chief Constable of Police Scotland can also apply to the court for a TERO
against an individual where it is considered that that individual is likely to commit a trafficking
offence
47 Looking at the equivalent costs for similar civil orders eg Sexual Offences Prevention
Orders the total costs to the SCS the COPFS and SLAB of applying for a TERO or post-
sentencing TEPO are estimated at between pound1000 and pound6000 per order It is not possible to
know how many TEPOs or TEROs might be applied for but assuming a number half the level of
the estimated maximum number of potential convictions for trafficking offences each year (four
to eight) would give estimated costs of between pound2000 (2 x pound1000) and pound24000 (4 x pound6000)
per annum
48 There will be costs to Police Scotland in monitoring TEPOs and TEROs whether
imposed at the time of sentence or by application but this will sit alongside Police Scotlandrsquos
existing crime prevention and investigative responsibilities and is not expected to add to
manpower costs
49 In addition to the costs of imposing and monitoring TEPOs and TEROs there will be
costs associated with prosecuting a breach of a TEPO or TERO Analysis in England and Wales
indicates that breaches of equivalent Serious Crime Prevention Orders are relatively low
Assuming one breach per annum the total combined costs to the COPFS the SCS and SLAB
would be between pound8400 and pound78100 per annum (see the combined costs for either sheriff
court or High Court procedures set out in Table 3 above) Assuming a maximum sentence of
five years the costs to the SPS for additional prison places would be between pound85000 and
pound127500 per annum (ie the pound42500 average costs of a prison place times either two or three
places depending on whether offenders are released early at the halfway or two-thirds point of
their sentence)
50 It is important to remember however that the purpose of TEPOs and TEROs is to
prevent further trafficking and exploitation offences occurring A TEPO or TERO will only be
imposed where a court considers that there is a credible risk of an individual committing such a
crime Any costs associated with the imposition and breach of TEPOs and TEROs needs to be
offset against the potential costs of prosecutions If each TEPO or TERO prevents the costs of a
conviction for an offence as set out in Part 1 above the costs to the Scottish Administration
would be at least cost neutral in terms of saved court and prison places expenditure
34
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
Costs on other bodies individuals and businesses
51 There will be no costs on other bodies businesses or other individuals as a consequence
of these sections
Costs on local authorities
52 There will be no new costs on local authorities as a consequence of these sections
PART 5 - STRATEGY AND REPORTING
Ensure a strategic cross-agency approach to tackling trafficking
53 The Bill places a duty on the Scottish Ministers to prepare publish and regularly review
and update a trafficking and exploitation strategy to assist in ensuring a co-ordinated and
strategic approach to this issue The provisions place a duty on Ministers to consult with such
organisations and individuals as they consider to have a relevant interest in the issues of human
trafficking and exploitation The Bill places a duty on relevant public bodies to be named in
regulations to assist in the preparation and review of the strategy
54 The Bill will place a duty on relevant public authorities to provide anonymised data about
potential human trafficking and exploitation victims to Police Scotland
Costs on the Scottish Administration
55 Activity arising from these provisions within the Bill will build on the activity and
current resources already committed to this area of work
56 Based on similar activities the estimated additional costs to the Scottish Ministers of
preparing and reviewing a trafficking and exploitation strategy will be approximately pound25000
every three years Alongside the preparation and publication of the strategy the Scottish
Ministers would also propose to support additional awareness raising and training activity to
build on the existing awareness raising and training activity already undertaken by relevant
organisations including the NHS Police Scotland and COPFS Consideration would be given to
how best to co-ordinate these resources alongside existing expenditure and activity For the
purposes of the Financial Memorandum and based on current activity additional costs on top of
existing activity are estimated at approximately pound100000 to pound250000 per annum over the first
four years of the Bill This is based on the best estimated costs of preparing and publishing
publicity and guidance material averaged over a number of years The exact costs will depend
on decisions taken in dialogue with stakeholders as part of the preparation of the strategy
57 The Scottish Government anticipates that the costs to relevant public authorities of
providing anonymised data about potential human trafficking victims to Police Scotland will be
marginal Costs to Police Scotland of collating this data will form part of their existing
intelligence gathering activity
35
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
Costs on other bodies individuals and businesses
58 There will be some costs on other bodies individuals and businesses in engaging with the
Scottish Ministers in the preparation and publication of the Strategy For business and
individuals this will be voluntary depending on their willingness to engage For public bodies
their level of engagement will depend on the relevance of the issue of trafficking and
exploitation to their work and their potential contribution to combating this behaviour Any
additional costs are expected to fit within or sit alongside their existing responsibilities for
example with reference to promoting and ensuring equalities and the application of human
rights obligations
Costs on local authorities
59 There will be costs on local authorities associated with engaging in the preparation and
review of the trafficking and exploitation strategy and in awareness raising and training of front-
line staff The additional costs should be marginal on top of the existing guidance and activity
already in place with reference to the identification and support of potential child victims of
trafficking The aim will be to minimise costs for other front-line local authority staff by
adapting the general awareness raising and training materials described above
SUMMARY
60 The table below provides a summary of the costs of each element of the Bill as described
above
Table 7 Summary table of costs for each aspect of the Bill (pound000)
Year 1 Year 2 Year 3 Year 4
Clarifying amp
Strengthening the
Criminal Law ndash Para 28 pound20-pound353 pound190- pound693 pound360-pound900 pound360-pound1073
Ensure the rights of
victims to access and
support - Para 36 pound70-pound140 pound140-pound280 pound220-pound430 pound290-pound580
Introduce new measures to
disrupt and prevent
trafficking pound016
pound0 pound0 pound0
Ensure a strategic cross
agency approach to
tackling trafficking ndash Para
56 pound125-pound275 pound100-pound250 pound100-pound250 pound125-pound275
TOTAL pound215-pound768 pound430-pound1223 pound680-pound1580 pound775-pound1928
16
The Scottish Government considers that the overall costs are at least cost neutral ndash see paragraphs 45 to 50
36
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December
SCOTTISH GOVERNMENT STATEMENT ON LEGISLATIVE
COMPETENCE
On 11 December 2014 the Cabinet Secretary for Justice (Michael Matheson MSP) made the
following statement
―In my view the provisions of the Human Trafficking and Exploitation (Scotland) Bill
would be within the legislative competence of the Scottish Parliament
mdashmdashmdashmdashmdashmdashmdashmdashmdashmdash
PRESIDING OFFICERrsquoS STATEMENT ON LEGISLATIVE
COMPETENCE
On 11 December 2014 the Presiding Officer (Rt Hon Tricia Marwick MSP) made the following
statement
―In my view the provisions of the Human Trafficking and Exploitation (Scotland) Bill
would be within the legislative competence of the Scottish Parliament
37
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December
SP Bill 57ndashEN Session 4 (2014)
HUMAN TRAFFICKING AND EXPLOITATION
(SCOTLAND) BILL
EXPLANATORY NOTES
(AND OTHER ACCOMPANYING DOCUMENTS)
Parliamentary copyright Scottish Parliamentary Corporate Body
Information on the Scottish Parliamentrsquos copyright policy can be found on the website -
wwwscottishparliamentuk
Produced and published in Scotland on behalf of the Scottish Parliamentary Corporate Body by APS
Group Scotland
ISBN 978-1-78534-569-2
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
Costs on other bodies individuals and businesses
51 There will be no costs on other bodies businesses or other individuals as a consequence
of these sections
Costs on local authorities
52 There will be no new costs on local authorities as a consequence of these sections
PART 5 - STRATEGY AND REPORTING
Ensure a strategic cross-agency approach to tackling trafficking
53 The Bill places a duty on the Scottish Ministers to prepare publish and regularly review
and update a trafficking and exploitation strategy to assist in ensuring a co-ordinated and
strategic approach to this issue The provisions place a duty on Ministers to consult with such
organisations and individuals as they consider to have a relevant interest in the issues of human
trafficking and exploitation The Bill places a duty on relevant public bodies to be named in
regulations to assist in the preparation and review of the strategy
54 The Bill will place a duty on relevant public authorities to provide anonymised data about
potential human trafficking and exploitation victims to Police Scotland
Costs on the Scottish Administration
55 Activity arising from these provisions within the Bill will build on the activity and
current resources already committed to this area of work
56 Based on similar activities the estimated additional costs to the Scottish Ministers of
preparing and reviewing a trafficking and exploitation strategy will be approximately pound25000
every three years Alongside the preparation and publication of the strategy the Scottish
Ministers would also propose to support additional awareness raising and training activity to
build on the existing awareness raising and training activity already undertaken by relevant
organisations including the NHS Police Scotland and COPFS Consideration would be given to
how best to co-ordinate these resources alongside existing expenditure and activity For the
purposes of the Financial Memorandum and based on current activity additional costs on top of
existing activity are estimated at approximately pound100000 to pound250000 per annum over the first
four years of the Bill This is based on the best estimated costs of preparing and publishing
publicity and guidance material averaged over a number of years The exact costs will depend
on decisions taken in dialogue with stakeholders as part of the preparation of the strategy
57 The Scottish Government anticipates that the costs to relevant public authorities of
providing anonymised data about potential human trafficking victims to Police Scotland will be
marginal Costs to Police Scotland of collating this data will form part of their existing
intelligence gathering activity
35
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
Costs on other bodies individuals and businesses
58 There will be some costs on other bodies individuals and businesses in engaging with the
Scottish Ministers in the preparation and publication of the Strategy For business and
individuals this will be voluntary depending on their willingness to engage For public bodies
their level of engagement will depend on the relevance of the issue of trafficking and
exploitation to their work and their potential contribution to combating this behaviour Any
additional costs are expected to fit within or sit alongside their existing responsibilities for
example with reference to promoting and ensuring equalities and the application of human
rights obligations
Costs on local authorities
59 There will be costs on local authorities associated with engaging in the preparation and
review of the trafficking and exploitation strategy and in awareness raising and training of front-
line staff The additional costs should be marginal on top of the existing guidance and activity
already in place with reference to the identification and support of potential child victims of
trafficking The aim will be to minimise costs for other front-line local authority staff by
adapting the general awareness raising and training materials described above
SUMMARY
60 The table below provides a summary of the costs of each element of the Bill as described
above
Table 7 Summary table of costs for each aspect of the Bill (pound000)
Year 1 Year 2 Year 3 Year 4
Clarifying amp
Strengthening the
Criminal Law ndash Para 28 pound20-pound353 pound190- pound693 pound360-pound900 pound360-pound1073
Ensure the rights of
victims to access and
support - Para 36 pound70-pound140 pound140-pound280 pound220-pound430 pound290-pound580
Introduce new measures to
disrupt and prevent
trafficking pound016
pound0 pound0 pound0
Ensure a strategic cross
agency approach to
tackling trafficking ndash Para
56 pound125-pound275 pound100-pound250 pound100-pound250 pound125-pound275
TOTAL pound215-pound768 pound430-pound1223 pound680-pound1580 pound775-pound1928
16
The Scottish Government considers that the overall costs are at least cost neutral ndash see paragraphs 45 to 50
36
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December
SCOTTISH GOVERNMENT STATEMENT ON LEGISLATIVE
COMPETENCE
On 11 December 2014 the Cabinet Secretary for Justice (Michael Matheson MSP) made the
following statement
―In my view the provisions of the Human Trafficking and Exploitation (Scotland) Bill
would be within the legislative competence of the Scottish Parliament
mdashmdashmdashmdashmdashmdashmdashmdashmdashmdash
PRESIDING OFFICERrsquoS STATEMENT ON LEGISLATIVE
COMPETENCE
On 11 December 2014 the Presiding Officer (Rt Hon Tricia Marwick MSP) made the following
statement
―In my view the provisions of the Human Trafficking and Exploitation (Scotland) Bill
would be within the legislative competence of the Scottish Parliament
37
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December
SP Bill 57ndashEN Session 4 (2014)
HUMAN TRAFFICKING AND EXPLOITATION
(SCOTLAND) BILL
EXPLANATORY NOTES
(AND OTHER ACCOMPANYING DOCUMENTS)
Parliamentary copyright Scottish Parliamentary Corporate Body
Information on the Scottish Parliamentrsquos copyright policy can be found on the website -
wwwscottishparliamentuk
Produced and published in Scotland on behalf of the Scottish Parliamentary Corporate Body by APS
Group Scotland
ISBN 978-1-78534-569-2
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December 2014
Costs on other bodies individuals and businesses
58 There will be some costs on other bodies individuals and businesses in engaging with the
Scottish Ministers in the preparation and publication of the Strategy For business and
individuals this will be voluntary depending on their willingness to engage For public bodies
their level of engagement will depend on the relevance of the issue of trafficking and
exploitation to their work and their potential contribution to combating this behaviour Any
additional costs are expected to fit within or sit alongside their existing responsibilities for
example with reference to promoting and ensuring equalities and the application of human
rights obligations
Costs on local authorities
59 There will be costs on local authorities associated with engaging in the preparation and
review of the trafficking and exploitation strategy and in awareness raising and training of front-
line staff The additional costs should be marginal on top of the existing guidance and activity
already in place with reference to the identification and support of potential child victims of
trafficking The aim will be to minimise costs for other front-line local authority staff by
adapting the general awareness raising and training materials described above
SUMMARY
60 The table below provides a summary of the costs of each element of the Bill as described
above
Table 7 Summary table of costs for each aspect of the Bill (pound000)
Year 1 Year 2 Year 3 Year 4
Clarifying amp
Strengthening the
Criminal Law ndash Para 28 pound20-pound353 pound190- pound693 pound360-pound900 pound360-pound1073
Ensure the rights of
victims to access and
support - Para 36 pound70-pound140 pound140-pound280 pound220-pound430 pound290-pound580
Introduce new measures to
disrupt and prevent
trafficking pound016
pound0 pound0 pound0
Ensure a strategic cross
agency approach to
tackling trafficking ndash Para
56 pound125-pound275 pound100-pound250 pound100-pound250 pound125-pound275
TOTAL pound215-pound768 pound430-pound1223 pound680-pound1580 pound775-pound1928
16
The Scottish Government considers that the overall costs are at least cost neutral ndash see paragraphs 45 to 50
36
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December
SCOTTISH GOVERNMENT STATEMENT ON LEGISLATIVE
COMPETENCE
On 11 December 2014 the Cabinet Secretary for Justice (Michael Matheson MSP) made the
following statement
―In my view the provisions of the Human Trafficking and Exploitation (Scotland) Bill
would be within the legislative competence of the Scottish Parliament
mdashmdashmdashmdashmdashmdashmdashmdashmdashmdash
PRESIDING OFFICERrsquoS STATEMENT ON LEGISLATIVE
COMPETENCE
On 11 December 2014 the Presiding Officer (Rt Hon Tricia Marwick MSP) made the following
statement
―In my view the provisions of the Human Trafficking and Exploitation (Scotland) Bill
would be within the legislative competence of the Scottish Parliament
37
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December
SP Bill 57ndashEN Session 4 (2014)
HUMAN TRAFFICKING AND EXPLOITATION
(SCOTLAND) BILL
EXPLANATORY NOTES
(AND OTHER ACCOMPANYING DOCUMENTS)
Parliamentary copyright Scottish Parliamentary Corporate Body
Information on the Scottish Parliamentrsquos copyright policy can be found on the website -
wwwscottishparliamentuk
Produced and published in Scotland on behalf of the Scottish Parliamentary Corporate Body by APS
Group Scotland
ISBN 978-1-78534-569-2
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December
SCOTTISH GOVERNMENT STATEMENT ON LEGISLATIVE
COMPETENCE
On 11 December 2014 the Cabinet Secretary for Justice (Michael Matheson MSP) made the
following statement
―In my view the provisions of the Human Trafficking and Exploitation (Scotland) Bill
would be within the legislative competence of the Scottish Parliament
mdashmdashmdashmdashmdashmdashmdashmdashmdashmdash
PRESIDING OFFICERrsquoS STATEMENT ON LEGISLATIVE
COMPETENCE
On 11 December 2014 the Presiding Officer (Rt Hon Tricia Marwick MSP) made the following
statement
―In my view the provisions of the Human Trafficking and Exploitation (Scotland) Bill
would be within the legislative competence of the Scottish Parliament
37
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December
SP Bill 57ndashEN Session 4 (2014)
HUMAN TRAFFICKING AND EXPLOITATION
(SCOTLAND) BILL
EXPLANATORY NOTES
(AND OTHER ACCOMPANYING DOCUMENTS)
Parliamentary copyright Scottish Parliamentary Corporate Body
Information on the Scottish Parliamentrsquos copyright policy can be found on the website -
wwwscottishparliamentuk
Produced and published in Scotland on behalf of the Scottish Parliamentary Corporate Body by APS
Group Scotland
ISBN 978-1-78534-569-2
These documents relate to the Human Trafficking and Exploitation (Scotland) Bill (SP Bill 57)
as introduced in the Scottish Parliament on 11 December
SP Bill 57ndashEN Session 4 (2014)
HUMAN TRAFFICKING AND EXPLOITATION
(SCOTLAND) BILL
EXPLANATORY NOTES
(AND OTHER ACCOMPANYING DOCUMENTS)
Parliamentary copyright Scottish Parliamentary Corporate Body
Information on the Scottish Parliamentrsquos copyright policy can be found on the website -
wwwscottishparliamentuk
Produced and published in Scotland on behalf of the Scottish Parliamentary Corporate Body by APS
Group Scotland
ISBN 978-1-78534-569-2